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GASELS 


ON 


PRIVATE  INTERNATIONAL  LAW 


BY 


JOHN  W.  DWYER,  LL.  M. 

instructor  of  law  in  the  department  of  law  of  the 
University  of  Michigan. 


Published  by 

GEORGE  WAHPv. 

Ann  Arbor. 


4— - 


Copyrighted  by  George  VVahr, 
1899. 


0Wp 


V7 
O 


PREFATORY  NOTICE. 


The  following-  collection  of  leading  cases  made  by  Mr. 

Dwyer  has  been  carefully  examined  by  me.     I  find  that  it 

covers,  as  fully  as  can  be  done  in  that  way,  the  subject  of 

my  lectures  on  Private  International  Law:  and  I  commend 

it  to  the  most   favorable   consideration  of    Students  and 

others. 

OTTO  KIRCHNER. 

University  of  Michigan. 

June  9.  1899. 


CONTENTS. 


INTRODUCTORY. 

PAGE. 

The  Nature  of  the  Subject— 

Dicey  Conflict  of  Laws 1 

State  Defined— 

Cooley's  Const.  Lira 16 

International,  Law  a  Part  of  the  Law  of  the  Land — 

Cooley's  Blackstone 17 

DOMICIL. 

Definition  and  Requisites  of  Domicil— 

Hayes  v.  Hayes 20 

Domiclls  of  Origin  and  of  Choice— 

Udny  v.  Udny 23 

In  re  Capdevielle 43 

Domicil  ln  Uncivilized  Countries— 

Dicey  Conflict  of  Laws 54 

Reverter  of  Domicil— 

Bank  v.  Balcom 57 

Commercial  DoMiciii — 

Dicey  Conflict  of  Laws 64 

Domicil  of  Married  Women— 

Matter  of  Florance 71 

Domicil  of  Infants— 

In  re  Vance 73 

Domicil  of  Insane  Persons— 

Pittsfieldv.  Detroit 76 

Domicil  of  Apprentices— 

Maddox  v.  The  State 80 

Domicil  of  Sailors — 

Bangs  v.  Brewster 81 

Domicil  of  Students — 

Vanderpoel  v.  O'Hanlon 85 


VI  CONTENTS. 

Domicil  for  Purposes  of  Taxation— 

Pullman  Car  Co.  v.  Penn 87 

Evidence  of  Domicil— 

Firth  v.  Firth 98 

NATIONALITY. 

Citizenship  and  Right  of  Expatriation— 

Pequignot  v.  City  of  Detroit 104 

Alien  Enemies— 

Clark  v.  Morey Ill 

The  Venus 117 


JURISDICTION  AND  CHOICE  OP  LAW. 

In  General— 

Dewitt  v.  Buchanan 133 

Machado  v.  Fontes 135 

Penal  Laws— 

Huntington  v.  Attrill 140 

Status  of  Marriage— 

Van  Voorhis  v.  Brintnall 165 

Property  Rights  Under  Marriage— 

Besse  v.  Pellochoux 181 

Foreign  DrvoRCE— 

Ditson  v.  Ditson 188 

Roth  v.  Roth 210 

Legitimacy— 

Blythe  v.  Ayres 220 

Guardians— 

In  re  Willie  Rice 253 

In  re  Stockman 255 

Lamar  v.  Micou 266 

Lamar  v.  Micou 286 

Administration— 

Wilkins  v.  Ellett 291 

Johnson  v.  Powers 294 

Reynolds  v.  McMullen 300 

Judgments— 

Hilton  v.  Guyot 310 


CASES    REPORTED.  Vll 

Corporations — 

Thompson  v.  Waters 367 

Mutual  Life  Ins.  Co.  v.  Spratley 386 

Immovables— 

Baum  v.  Birchall 399 

Movables— 

Crapo  v.  Kelly 402 

Barnett  v.  Kinney 412 

Attachment  and  Situs  op  a  Debt— 

National  Fire  Ins.  Co.  v.  Chambers 420 

Contracts— 

Fisher  v.  Otis 447 

Miller  v.  Wilson 456 

Scudder  v.  Union  National  Bank    ...  459 

Liverpool  Steam  Co.  v.  Phenix  Ins.  Co 465 

Statute  of  Frauds— 

Leroux  v.  Brown 493 

Torts— 

Dennick  v.  Railroad  Co 498 

Procedure— 

Dicey  Conflict  of  Laws 503 


CASES  REPORTED. 


PASE. 

Bangs  v.  Brewster Ill  Mass.  382 81 

Bank  v.  Balcom 35  Conn.  351 57 

Barnett  v.  Kinney 147  U.  S.  476 412 

Baum  v.  Birchall 150  Pa.  St.  164 399 

Besse  v.  Pellochoux 73  111.  285 181 

Blythe  v.  Ayres 96  Cal.  532 220 

Clark  v.  Morey 10  Johns  69 Ill 

Crapo  v.  Kelly 16  Wall  610 402 

Dennick  v.  Railroad  Co 103  U.  S.  11 498 

Dewittv.  Buchanan 54  Barb.  31 133 

Ditson  v.  Ditson.. 4  R.  I.  87 188 


Vlll  CASES   REPORTED. 

Firth  v.  Firth 50  N.  J.  Eq.  137 98 

Fisher  v.  Otis 3  Wis.  (Pinney's)  78 447 

Hayes  v.  Hayes 74  111.  312 20 

Hilton  v.  Guyot 159  U.  S.  113 310 

Hunting-ton  v.  Attrill 146  U.  S.  657 140 

In  re  Capdevielle 2  H.  &  C.  985 43 

In  re  Stockman 71  Mich.  180 255 

In  re  Vance 92  Cal.  195 73 

In  re  Willie  Rice 42  Mich.528 253 

Johnson  v.  Powers 139  U.  S.  156 294 

Lamar  v.  Micou 112  U.  S.  452 266 

Lamar  v.  Micou 114  U.  S.  218 286 

Leroux  v.  Brown.. 74  Eng.  Com.  Law  800 493 

Liverp'l  St'm  Co.  v.  Phenixlns.  Co..l29  U.  S.  397 465 

Machado  v.  Fontes 2  L.  R.  Q.  B.  D.  231 135 

Maddox  v.  The  State 32  Ind.  Ill 80 

Matter  of  Florance 54  Hun  (N.  Y.)  328 71 

Miller  v.  Wilson 146  111.  523 456 

Mutual  Life  Ins.  Co.  v.  Spratley....l72  U.  S.  602 386 

National  Fire  Ins.  Co.  v.  Chambers..  53  N.  J.  Eq.  468 420 

Pequignot  v.  City  of  Detroit 16  Fed.  Rep.  211 104 

Pittsfieldv.  Detroit 53  Me.  442 76 

Pullman  Car  Co.  v.  Penn J41  U.  S.  18 87 

Reynolds  v.  McMullen 55  Mich.  568 300 

Roth  v.  Roth 104  111.  35 210 

Scudder  v.  Union  National  Bank...  91  U.  S.  406 459 

The  Venus 8  Cr.  253 117 

Thompson  v.  Waters 25  Mich.  214 367 

tt,   „  „  TTA„„                                     5      1  L.  R.  Scotch  &  Div.  Apps. 
Udny  v.  Udny j  Cs  m "»     23 

Vanderpoel  v.  O'Hanlon 53  Iowa  246 85 

Van  Voorhis  v.  Brintnall 86  N.  Y.  18 165 

Wilkins  v.  Ellett 108  U.  S.  256 291 


INTRODUCTORY. 


THE  NATURE  OF   THE   SUBJECT. 
DICEY  CONFLICT  OF  LAWS,  P.  1.* 

Most  of  the  cases  which  occupy  an  English  Court  are  in  every 
respect  of  a  purely  English  character;  the  parties  are  English- 
men, and  the  cause  of  action  arises  wholly  in  England,  as  where 
A,  a  London  tradesman,  sues  X,  a  citizen  of  London,  for  the  price 
of  goods  sold  and  delivered  in  London.  When  this  is  so,  every 
act  done,  or  alleged  to  he  done,  by  either  of  the  parties  clearly  de- 
pends for  its  legal  character  on  the  ordinary  rules  of  English  law. 

Cases,  however,  frequently  come  before  our  Courts  which 
contain  some  foreign  element;  the  parties,  one  or  both  of  them, 
may  be  of  foreign  nationality,  as  where  an  Italian  sues  a  French- 
man for  the  price  of  goods  sold  and  delivered  at  Liverpool;  the 
cause  of  action,  or  ground  of  defence,  may  depend  upon  transac- 
tions taking  place  wholly  or  in  part  in  a  foreign  country ;  as  where 
A  sues  X  for  an  assault  at  Paris,  or  on  a  contract  made  in  France 
and  broken  in  England,  or  where  X  pleads  in  his  defence  a  dis- 
charge under  the  French  bankruptcy  law ;  the  transactions,  lastly, 
in  question,  though  taking  place  wholly  in  England,  may,  ;n  some 
way,  have  reference  to  the  law  or  customs  of  a  foreign  country : 
this  is  so,  for  instance,  when  A  wishes  to  enforce  the  trusts  of  a 
marriage  settlement  executed  in  England,  but  which  on  the  face 
of  it,  or  by  implication,  refers  to  French  or  Italian  law. 

Whenever  a  case  containing  any  foreign  element  calls  fort 
decision,  the  judge  before  whom  it  is  tried  must,  either  expressly 
or  tacitly,  find  an  answer  to,  at  least,  two  preliminary  questions. 

First  Question. — Is  the  case  before  him  one  which  any 
English  Court  has,  according  to  the  law  of  England,  a  right  to 
determine? 

The  primary  business  of  English  tribunals  is  to  adjudicate  on 
transactions  taking  place  in  England  between  Englishmen,  or  at 

•This  extract  is  inserted  by  permission  of  the  publishers  of  the  American  Edition  of 
"Dicey  on  the  Conflict  of  Laws." 


2  PRIVATE   INTERNATIONAL   LAW. 

any  rate  between  persons  resident  in  England ;  or,  briefly,  to  de- 
cide English  disputes.  There  clearly  may  be  matters  taking  place 
in  a  foreign  country,  or  between  foreigners,  with  which  nD  Eng- 
lish Court  has,  according  to  the  law  of  England,  any  concern 
whatever;  thus  no  Division  of  the  High  Court,  and  a  fortiori  no 
other  English  tribunal,  will  entertain  an  action  for  the  recovery  of 
land  in  any  other  country  than  England.  When,  therefore,  a 
case  coming  before  an  English  judge  contains  a  foreign  element, 
he  must  tacitly  or  expressly  determine  whether  it  is  one  on  which 
he  has  a  right  to  adjudicate.  This  first  question  is  a  question  of 
jurisdiction  (forum). 

Second  Question. — What  (assuming  the  question  of  juris- 
diction to  be  answered  affirmatively)  is  the  body  of  law  with  ref- 
erence to  which  the  rights  of  the  parties  are  according  to  the 
principles  of  the  law  of  England  to  be  determined  ? 

Is  the.  judge,  that  is  to  say,  to  apply  to  the  matter  in  dispute 
(e.  g.,  the  right  of  A  to  obtain  damages  from  X  for  an  assault  at 
Paris)  the  ordinary  rules  of  English  law  applicable  to  like  trans- 
actions taking  place  between  Englishmen  in  England,  or  must  he, 
because  of  the  "foreign  element"  in  the  case,  apply  to  its  decision 
the  rules  of  some  foreign  law,  e.  g.,  the  provisions  of  French  law 
as  to  assaults  ? 

This  second  question  is  an  inquiry  not  as  to  jurisdiction,  but 
as  to  the  choice  of  law  (lex). 

Each  of  these  inquiries,  be  it  noted,  must  be  answered  by  any 
judge,  English  or  foreign,  in  accordance  with  definite  principles, 
and,  by  an  English  judge,  sitting  in  an  English  Court,  in  accord- 
ance with  principles  or  rules  to  be  found  in  the  law  of  England. 
These  rules  make  up  that  department  of  English  law  which  deals 
with  the  conflict  of  laws,  and  may  be  provisionally  described  as 
principles  of  the  law  of  England,  governing  the  extra-territorial 
operation  of  law  or  recognition  of  rights.  This  branch  of  Eng- 
lish law  is  as  much  part  of  the  law  of  England  as  the  Statute  of 
Frauds,  or  the  Statute  of  Distributions.  The  subject,  however, 
with  which  we  are  dealing  is,  partly  from  ambiguity  of  language, 
and  partly  from  other  causes,  involved  in  so  much  obscurity  of  its 
own  that  we  may  well  examine  somewhat  further  into  the  nature 


NATURE   OF    SUBJECT.  3 

of  our  topic,  and  look  at  the  matter  from  a  somewhat  different 
point  of  view  from  the  side  whence  we  have  hitherto  regarded  it. 

The  law  of  every  country,  as  for  example  of  England,  con- 
sists of  all  the  principles,  rules,  or  maxims  enforced  by  the  Courts 
of  that  country  under  the  authority  of  the  state. 

It  makes  no  difference  for  our  present  purpose,  whether  these 
principles  be  written  or  unwritten ;  whether  they  be  expressed  in 
Acts  of  Parliament,  or  exist  as  customs ;  whether  they  are  the 
result  of  direct  legislation,  or  are  created  by  judicial  decisions. 
Any  rule  or  maxim  whatsoever,  which,  when  the  proper  occasion 
arises,  will  be  enforced  by  the  Courts  of  England  under  the  au- 
thority of  the  state,  is  part  of  the  law  of  England.  Thus  the 
rule  that  land  descends  to  the  heir,  derived  as  it  is  from  the  Com- 
mon Law ;  the  rule  that  personal  property  goes  to  the  next  of  kin, 
depending  as  it  now  does  upon  the  Statute  of  Distributions;  the 
principle  that  a  simple  contract  is  not  valid  without  a  considera- 
tion ;  or  the  doctrine,  created  as  it  is  by  judicial  legislation,  that 
the  validity  of  a  marriage  ceremony,  wherever  made,  depends  on 
the  law  of  the  country  where  the  marriage  is  celebrated,  are  each 
of  them,  however  different  in  character  and  origin,  rules  enforced 
by  English  Courts,  and  therefore  each  of  them  both  laws  and  part 
of  the  law  of  England. 

The  law  of  England,  however,  taken  in  its  most  extended  and 
most  proper  sense,  may,  in  common  with  the  law  of  every  civilised 
country,  e.  g.,  of  Italy  or  of  France,  be  divided  into  two  branches. 

The  first  branch  of  the  law  of  England  may  be  described,  if 
not  with  absolute  precision,  yet  with  sufficient  accuracy  for  our 
present  object,  as  the  body  of  rules  which  regulate  the  rights  of 
the  inhabitants  of  England  and  determine  the  legal  effect  of  trans- 
actions taking  place  between  Englishmen  within  the  limits  of 
England.  Indirectly,  indeed,  these  rules  may,  under  certain  cir- 
cumstances, affect  transactions  taking  place  abroad;  their  direct 
and  immediate  effect,  however,  is  to  regulate  the  actions  of  men 
and  women  living  in  England.  They  may,  therefore,  for  the  sake 
of  distinction  from  the  other  branch  or  portion  of  English  law. 
be  called  the  "territorial"  or  "local"  law  of  England.  This  terri- 
torial law  constitutes  indeed  so  much  the  oldest  and  most  impor- 


4  PRIVATE   INTERNATIONAL  LAW. 

tant  part  of  English  law,  that  it  has  been  constantly  taken  to  be, 
and  treated  as,  the  whole  of  the  law  of  the  land.  Blackstone's 
Commentaries,  for  example,  though  written  with  the  avowed  ob- 
ject of  describing  the  whole  of  the  "law  of  England,"  contain  no 
mention  of  any  rules  which  do  not  belong  to  the  territorial  or  local 
law.  With  this  branch  of  the  law,  important  though  it  be,  the 
writer  on  the  conflict  of  laws  has  no  direct  concern. 

The  second  branch  of  the  law  of  England  consists  of  rules 
which  do  not  directly  determine  the  rights  or  liabilities  of  particu- 
lar persons,  but  which  determine  the  limits  of  the  jurisdiction  to 
be  exercised  by  the  English  Courts  taken  as  a  whole,  and  also  the 
choice  of  the  body  of  law,  whether  the  territorial  law  of  England 
or  the  law  of  any  foreign  country,  by  reference  to  which  English 
Courts  are  to  determine  the  different  matters  brought  before  them 
for  decision. 

These  rules  about  jurisdiction  and  about  the  choice  of  law, 
which  make  up  the  second  branch  of  the  law  of  England,  are 
directions  for  the  guidance  of  the  judges. 

As  to  purely  English  transactions  no  such  guidance  can  be 
needed.  English  Courts  clearly  have  jurisdiction  in  respect  of 
matters  taking  place  within  this  country,  for  to  determine  the  legal 
effect  of  such  matters  is  the  very  object  for  which  the  Courts  are 
constituted.  The  legal  character,  again,  of  acts  done  in  England 
by  Englishmen  must  obviously  be  determined  by  reference  to  the 
territorial  law  of  England,  since  the  very  object  for  which  this 
law  is  created  is  to  regulate  the  actions  of  Englishmen  in  England. 

The  rules  therefore  in  question,  since  they  are  inapplicable  to 
purely  English  transactions,  must  have  reference  to  cases  which 
contain,  or  may  contain,  some  foreign  element.  They  are,  in  fact, 
directions  for  the  guidance  of  the  judges  when  called  upon  to  deal 
with  transactions  which,  either  because  of  the  foreign  characte- 
of  one,  or  of  both,  of  the  parties,  or  because  something  material 
to  the  case  has  been  done,  or  is  intended  to  be  done,  in  a  foreign 
country,  or  has  been  done  with  reference  to  some  foreign  law, 
may,  possibly  at  least,  require  for  their  fair  determination,  refer- 
ence to  the  provisions  of  some  foreign  law.  If,  for  the  sake  of 
convenience,  we  dismiss  for  the  moment  from  our  attention  all 


NATURE   OF   SUBJECT.  0 

questions  of  jurisdiction,  this  second  branch  of  the  law  of  England 
may  be  described  in  the  following  terms.  It  is  that  part  of  the 
"law  of  England  which  provides  directions  for  the  judges  when 
called  upon  to  adjudicate  upon  any  question  in  which  the  rights  of 
foreigners,  or  the  effect  of  acts  done,  or  to  be  done,  in  a  foreign 
country,  or  with  reference  to  a  foreign  law,  require  determination. 
These  directions  determine  whether  a  given  class  of  cases  (e.  g., 
cases  as  to  contracts  made  in  foreign  countries)  must  be  decided 
wholly  by  reference  to  the  territorial  law  of  England,  or  either 
wholly,  or  in  part,  by  reference  to  the  law  of  some  foreign  coun- 
try, e.  g.,  France.  Since  these  directions  for  the  choice  of  law 
may  provide  either  that  the  territorial  law  of  England  shall,  under 
certain  circumstances,  govern  acts  taking  place  abroad,  e.  g.,  the 
proper  execution  of  a  will  made  in  France  by  a  testator  domiciled 
in  England,  or  that  foreign  law  shall,  under  certain  circum- 
stances, govern  acts  done  in  England,  e.  g.,  the  proper  execution 
of  a  will  made  in  England  by  a  testator  domiciled  in  France, 
they  may,  as  has  been  already  intimated,  be  described  as  "rules 
for  determining  the  extra-territorial  operation  of  law,"  or  better, 
"the  extra-territorial  recognition  of  rights,"  and  the  branch  of 
law  with  which  we  are  concerned  is,  if  we  include  within  it  both 
rules  as  to  jurisdiction  and  rules  as  to  the  choice  of  law,  nothing 
else  than  the  subject  generally  treated  of  by  English  and  American 
writers  under  the  title  of  Conflict  of  Laws,  and  by  Continental 
authors  under  the  title  of  Private  International  Law. 

A  mastery  of  this  twofold  division  of  the  law  of  England  (or 
for  that  matter  of  any  civilised  country)  puts  a  student  on  his 
guard  against  an  ambiguity  of  language  which,  unless  clearly  per- 
ceived, introduces  confusion  into  every  discussion  concerning  the 
conflict  of  laws. 

The  term  '"law  of  a  given  country,"  e.  g.,  law  of  England,  or 
law  of  France,  is  an  expression  which,  under  different  forms,  nec- 
essarily recurs  again  and  again  in  every  treatise  on  private  inter- 
national law.  It  is  further  an  expression  which  appears  to  be  per- 
fectly intelligible,  and  therefore  not  to  demand  any  explanation. 
Yet,  like  many  other  current  phrases,  it  is  ambiguous.  For  the 
term  "law  of  a  given  country"  has,  at  least,  two  meanings.     It 


6  PRIVATE   INTERNATIONAL  LAW. 

may  mean,  and  this  is  its  most  proper  sense,  every  rule  enforced 
by  the  Courts  of  that  country.  It  may  mean,  on  the  other  hand, 
and  this  is  a  very  usual  sense,  that  part  of  the  rules  enforced  by 
the  Courts  of  a  given  country  which  makes  up  the  "local"  or  "ter- 
ritorial" law  of  a  country.  To  express  the  same  thing  in  a  dif- 
ferent form,  the  term  "law  of  a  country"  may  be  used  as  either 
including  the  rules  for  the  choice  of  law,  or  as  excluding  such 
rules  and  including  only  those  rules  or  laws  which,  as  they  refer 
to  transactions  taking  place  among  the  inhabitants  of  a  country 
within  the  limits  thereof,  I  have  called  local  or  territorial  law . 

This  ambiguity  may  be  best  understood  by  following  out  its 
application  to  the  expression  "law  of  England." 

The  term  "law  of  England"  may,  on  the  one  hand,  mean 
every  rule  or  maxim  enforced  or  recognised  by  the  English 
Courts,  including  the  rules  or  directions  followed  by  English 
judges  as  to  the  limits  of  jurisdiction  and  as  to  the  choice  of  law. 
This  is  the  sense  in  which  the  expression  is  used  in  the  absolutely 
true  statement  that  "every  case  which  comes  before  an  English 
Court  must  be  decided  in  accordance  with  the  law  of  England." 
The  term  "law  of  England"  may,  on  the  other  hand,  mean,  not 
the  whole  of  the  law  of  England,  but  the  local  or  territorial  law 
of  England  excluding  the  rules  or  directions  followed  by  English 
judges  as  to  the  limits  of  jurisdiction  or  as  to  the  choice  of  law. 
This  is  the  sense  in  which  the  expression  is  used  in  the  also  abso- 
lutely true  statements  that  "the  validity  of  a  wiil  executed  in  Eng- 
land by  a  Frenchman  domiciled  in  France  is  determined  by  Eng- 
lish judges  not  in  accordance  with  the  law  of  England  but  in  ac- 
cordance with  the  law  of  France,"  or  that  "a  will  of  freehold  lands 
in  England,  though  executed  by  a  foreigner  abroad,  will  not  be 
valid  unless  executed  in  conformity  with  the  law  of  England." 
/.  e'.,  with  the  provision  of  the  Wills  Act,  1837. 

Hence  the  assertion  that  "while  all  cases  which  come  for  de- 
cision before  an  English  Court  must  be  decided  in  accordance 
with  the  law  of  England,  yet  many  such  cases  are,  and  must  be, 
decided  in  accordance,  not  with  the  law  of  England,  but  with  the 
law  of  a  foreign  country,  e.  g.,  France,"  though  it  sound  paradox- 
ical, or  self-contradictory,  is  strictly  true.     The  apparent  contra- 


NATURE    OF    SUBJECT.  7 

diction  is  removed  when  we  observe  that  in  the  two  parts  of  the 
foregoing  statement  the  term  law  of  England  is  used  in  two 
different  senses :  in  the  earlier  portion  it  means  the  whole  law  of 
England,  in  the  latter  it  means  the  terirtorial  law  of  England. 
This  ambiguity  is  made  plain  to  any  one.  who  weighs  the  meaning 
of  the  well-known  dictum  of  Lord  Stowell  with  regard  to  the  law 
regulating  the  validity  of  a  marriage  celebrated  in  a  foreign  coun- 
try. The  question,  it  is  therein  laid  down,  "being  entertained  in 
"an  English  Court,  it  must  be  adjudicated  according  to  the  prin- 
ciples of  English  law,  applicable  to  such  a  case.  But  the  only 
"principle  applicable  to  such  a  case  by  the  laws  of  England  is, 
"that  the  validity  of  Miss  Gordon's  marriage  rights  must  be  tried 
"by  reference  to  the  law  of  the  country,  where,  if  they  exist  at  all, 
"they  had  their  origin.  Having  furnished  this  principle,  the  law 
"of  England  withdraws  altogether,  and  leaves  the  legal  question 
"to  the  exclusive  judgment  of  the  law  of  Scotland." 

Let  it  be  further  borne  in  mind  that  the  ambiguity  affecting 
the  term  law  of  England  affects  the  term  law  of  France,  law  of 
Italy,  and  the  like,  and  that  with  regard  to  statements  where 
these  terms  are  used,  the  reader  should  always  carefully  consider 
whether  the  expression  is  intended  to  include  or  to  exclude  the 
rules  followed  by  the  Courts  of  the  given  country,  e.  g.,  France, 
as  to  the  choice  of  law. 

The  general  character  of  our  subject  being  then  understood, 
there  remain  several  subordinate  points  which  deserve  considera- 
tion. 

First.  The  branch  of  law  containing  rules  for  the  selection 
of  law  is  in  England,  as  elsewhere,  of  later  growth  than  the  ter- 
ritorial law  of  the  land. 

The  development  of  rules  about  the  conflict  of  law  implies 
both  the  existence  of  different  countries  governed  by  different 
laws, — a  condition  of  things  which  hardly  existed  when  the  law 
of  Rome  was  the  law  of  the  civilised  world, — and  also  the  exist- 
ence of  peaceful  and  commercial  intercourse  between  independent 
countries, — a  condition  of  things  which  had  no  continuous  exist- 
ence during  the  ages  of  mediaeval  barbarism. 


8  PRIVATE   INTERNATIONAL   LAW. 

It  was  not,  therefore,  until  the  development  of  something  like 
the  state  of  society  now  existing  in  modern  Europe  that  questions 
about  the  conflict  of  laws  powerfully  arrested  the  attention  of 
lawyers.  It  is  a  fact  of  great  significance  that  the  countries  where 
attention  was  first  paid  to  this  branch  of  law,  and  where  it  has 
been  studied  with  the  greatest  care,  have  been  countries  such  as 
Holland,  Germany,  Great  Britain,  or  the  United  States,  composed 
of  communities,  which,  though  governed  under  different  laws, 
have  been  united  by  the  force  either  of  law  or  of  sentiment  into 
something  like  one  state  or  confederacy.  States  of  this  descrip- 
tion, such  for  example  as  the  United  Netherlands,  both  felt  sooner 
than  others  the  need  for  giving  extra-territorial  effect  to  local 
laws,  and  also  found  less  difficulty  than  did  other  countries  in 
meeting  this  necessity ;  since  the  local  laws  which  the  Courts  ap- 
plied were  not  in  strictness  foreign  laws,  but,  from  one  point  of 
view,  laws  prevailing  in  different  parts  of  one  state.  In  this  mat- 
ter the  history  of  France  supplies  one  of  these  instructive  excep- 
tions which  prove  the  rule.  France  was  never  a  confederacy,  but 
the  provinces  of  the  monarchy  were  governed  by  different  laws. 
Hence  the  call  for  determining  the  extra-provincial  effect  of  cus- 
toms raised  judicial  problems  about  the  choice  of  law.  It  is  also 
noteworthy  that  few  English  decisions  bearing  on  our  subject  are 
of  earlier  date  than  the  Union  with  Scotland.  None  are  known 
to  me  earlier  than  the  accession  of  James  I. 

Secondly.  The  growth  of  rules  for  the  choice  of  law  is  the 
necessary  rejut  of  the  peaceful  existence  of  independent  nations 
combined  with  the  prevalence  of  commercial  intercourse.  From 
the  moment  that  these  conditions  are  realised,  the  judges  of  every 
country  are  compelled  by  considerations  of  the  most  obvious  con- 
venience to  exercise  a  choice  of  law,  or,  in  other  words,  to  apply 
foreign  laws.  That  this  is  so  may  be  seen  from  an  examination 
of  the  only  courses  which,  when  a  case  involving  any  foreign  ele- 
ment calls  for  decision,  are,  even  conceivably,  open  to  the  Courts 
of  any  country  forming  part  of  the  society  of  civilised  nations. 

The  necessity  for  choosing  between  the  application  of  differ- 
ent laws  might  conceivably  be  avoided  by  rigid  adherence  to  one 
of  two  principles. 


NATURE    OF    SUBJECT.  9 

The  Courts  of  any  country,  e.  g.,  of  England,  might,  on  the 
one  hand,  decline  to  give  any  decision  on  cases  involving  any  for- 
eign element,  i.  e.,  cases  either  to  which  a  foreigner  was  a  party, 
or  which  were  connected  with  any  transaction  taking  place  wholly, 
or  in  part,  beyond  the  limits  of  England. 

Xo  need  for  a  choice  of  law  would  then  arise,  for  the  Courts 
would  in  effect  decline  to  decide  any  question  not  clearly  governed 
by  the  territorial  law  of  England.  This  course  of  action  would, 
however,  exclude  Englishmen  no  less  than  foreigners  from  re- 
course to  English  tribunals.  For  an  Englishman  who  had  entered 
into  a  contract  with  a  Scotchman  at  Edinburgh,  or  with  a  French- 
man at  Paris,  would,  if  the  principle  suggested  were  rigidly  car- 
ried out,  be  unable  to  bring  an  action  in  the  English  Courts  for  a 
breach  of  the  contract.  To  which  it  may  be  added  that,  were  the 
same  principle  adopted  by  the  Courts  of  other  countries,  neither 
party  to  such  a  contract  would  have  any  remedy  anywhere  for  its 
breach. 

The  English  Court  might,  on  the  other  hand,  determine  to 
decide  every  matter  brought  before  them,  whatever  the  cause  of 
action  and  wherever  it  arose,  solely  with  reference  to  the  local 
law  of  England,  and  hence  determine  the  effect  of  things  done 
in  Scotland  or  in  France,  exactly  as  they  would  do  if  the  trans- 
actions had  taken  place  between  Englishmen  in  England. 

Difficulties  about  the  choice  of  law  would,  by  the  adoption  of 
this  principle,  be  undoubtedly  removed,  since  the  sole  rule  of  selec- 
tion would  be,  that  the  territorial  law  of  England  must  in  all  cases 
be  selected,  or,  in  other  words,  that  there  must  be  no  choice  at  all. 
Gross  injustice  would,  however,  inevitably  result  as  well  to  Eng- 
lishmen as  to  foreigners.  The  object  of  a  legal  decision  or  judg- 
ment is  to  enforce  existing  rights,  or  give  compensation  for  the 
breach  thereof,  and  it  is  not  the  object  of  a  legal  decision  or  judg- 
ment to  create  new  rights,  except  in  so  far  as  such  creation  may 
be  necessary  for  the  enforcement  or  protection  of  rights  already 
in  existence.  But  to  determine  the  legal  effect  of  acts  done  in 
Scotland  or  in  France,  e.  g.,  of  a  contract  made  between  Scotch- 
men in  Edinburgh,  solely  with  reference  to  the  local  law  of  Eng- 
land, would  be  to  confer  upon  one  or  other  of  the  parties,  or  per- 


10  PRIVATE   INTERNATIONAL   LAW. 

haps  upon  both,  new  rights  quite  different  from  those  acquired 
under  the  agreement,  or,  in  other  words,  to  fail  in  the  very  object 
which  it  is  sought  to  attain  by  means  of  a  judgment.  That  this 
is  so  becomes  even  more  manifest  if  we  place  before  our  minds  a 
case  of  which  the  foreign  element  consists  in  the  fact  that  two 
persons  have  intended  in  some  transaction  to  regulate  their  rights 
by  reference  to  a  foreign  law.  A  and  X,  Englishmen,  living  in 
England,  agree  in  London  that  certain  property  shall  be  settled, 
as  far  as  English  law  allows,  in  accordance  with  the  rules  of 
French  law.  If  in  interpreting  the  settlement  an  English  judge 
were  to  decline  to  take  any  notice  of  the  law  of  France,  he  would 
clearly  fail  in  carrying  out  the  intention  of  the  parties,  or,  in  other 
words,  would  fail  in  ensuring  to  either  of  them  his  rights  under 
the  settlement. 

If,  therefore,  it  is  impossible  for  the  Courts  of  any  country, 
without  injustice  and  damage  to  natives,  no  less  than  to  foreign- 
ers, either  to  decline  all  jurisdiction  in  respect  oi  foreign  transac- 
tions, or  to  apply  to  such  transactions  no  rules  except  those  of  the 
local  law,  a  consequence  follows  which  has  hardly  been  sufficiently 
noted.  It  is  this:  that  the  Courts  of  every  civilised  country  are 
constrained,  not  only  by  logical,  but  by  practical  necessity,  to  con- 
cern themselves  with  the  choice  of  law,  and  must  occasionally  give 
extra-territorial  effect  now  to  their  own  local  law,  now  to  the  law 
of  some  foreign  state. 

Is,  or  is  not  the  enforcement  of  foreign  law  a  matter  of  "com- 
ity" ?  This  is  an  inquiry  which  has  greatly  exercised  the  minds 
of  jurists.  We  can  now  see  that  the  disputes  to  which  it  ha* 
given  rise  are  little  better  than  examples  of  idle  logomachy.  If 
the  assertion  that  the  recognition  or  enforcement  of  foreign  law 
depends  upon  comity  means  only  that  the  law  of  no  country  can 
have  effect  as  law  beyond  the  territory  of  the  sovereign  by  whom 
it  was  imposed,  unless  by  permission  of  the  state  where  it  is 
allowed  to  operate,  the  statement  expresses,  though  obscurely,  a 
real  and  important  fact.  If,  on  the  other  hand,  the  assertion  that 
the  recognition  or  enforcement  of  foreign  laws  depends  upon 
comity  is  meant  to  imply  that,  to  take  a  concrete  case,  when  Eng- 
lish judges  apply  French  law,  they  do  so  out  of  courtesy  to  the 


NATURE    OF    SUBJECT.  11 

French  Republic,  then  the  term  comity  is  used  to  cover  a  view 
winch,  if  really  held  by  any  serious  thinker,  affords  a  singular 
specimen  of  confusion  of  thought  produced  by  laxity  of  language. 
The  application  of  foreign  law  is  not  a  matter  of  caprice  or  option, 
it  does  not  arise  from  the  desire  of  the  sovereign  of  England,  or 
of  any  other  sovereign,  to  show  courtesy  to  other  states.  It  flows 
from  the  impossibility  of  otherwise  determining  whole  classes  of 
cases  without  gross  inconvenience  and  injustice  to  litigants, 
whether  natives  or  foreigners.  It  were  well  too  in  this  matter 
to  give  heed  to  two  observations.  The  first  is  that  the  Courts, 
c.  g.,  of  England,  never  in  strictness  enforce  foreign  law ;  when 
they  are  said  to  do  so,  they  enforce  not  foreign  laws,  but  rights 
acquired  under  foreign  laws.  The  second  observation  is,  that 
disputes  about  the  effect  of  comity — and  the  remark  applies  to 
other  controversies  about  the  conflict  of  laws — have  been  confused 
by  mixing  together  the  question  what,  on  a  given  subject,  is  the 
rule,  or,  in  other  words,  the  law  which  will  be  enforced  by  the 
judges,  with  the  different  inquiry,  what  are  the  motives  which 
have  led  judges  or  legislators  to  adopt  a  particular  rule  as  law. 
Assume,  for  the  sake  of  argument,  the  truth  of  the  doctrine  that 
the  enforcement  of  foreign  laws  depends  upon  comity.  This 
dogma  throws  no  light  whatever  on  the  nature  of  the  rules  up- 
held by  English  or  other  Courts  as  to  the  enforcement  of  foreign 
laws.  To  know,  for  example,  that  the  Courts  are  influenced  by 
considerations  of  comity  is  no  guide  to  any  one  who  attempts  to 
answer  the  inquiry  whether  the  tribunals  of  a  given  country 
accept  "domicil."  as  do  English  Courts,  or  "nationality,"  as  do 
Italian  Courts,  as  determining  the  law  which  affects  the  validity 
of  a  will. 

Thirdly.  Though  the  rules  as  to  extra-territorial  effect  of 
law  enforced  by  our  Courts  are  part  of  the  law  of  England,  it 
should  be  noted  that  the  law  of  every  other  civilised  country,  e.  g., 
of  France,  of  Italy,  or  of  Germany,  contains  rules  for  the  choice 
of  law,  not  indeed  identical  with,  but  very  similar  to,  the  rules  for 
the  same  purpose  to  be  found  in  the  law  of  England. 

That  this  should  be  so  is  natural.  In  any  given  case  the  laws 
among  which  a  choice  may  rationally  be  made  are  limited  in  num- 


12  PRIVATE   INTERNATIONAL  LAW. 

ber.  The  selection  of  one  or  more  of  these  laws  is  not  a  matter 
of  caprice,  but  depends  upon  more  or  less  definite  reasons  which 
are  likely  to  influence  all  Courts  and  legislators.  The  grounds, 
for  example,  which  induce  the  Courts  of  England  to  determine 
the  formal  validity  of  a  contract,  by  the  law  of  the  place  where  it 
is  made,  are  likely  to  weigh  with  the  Courts  of  France  or  of  Ger- 
many. There  exists,  moreover,  a  palpable  convenience  in  the 
adoption  by  different  countries  of  the  same  principle  for  the  choice 
of  law.  Hence  the  mere  fact  that  a  particular  rule  for  the  selec- 
tion of  law  has  been  followed  by  the  French  and  American  Courts 
is  a  valid  though  not  absolutely  decisive  reason  in  favor  of  its 
being  adopted  by  English  Courts ;  and  an  appreciation  of  the  ad- 
vantages to  be  derived  from  uniformity  has  undoubtedly  influ- 
enced both  Courts  and  legislatures,  when  called  upon  to  determine 
in  a  given  class  of  cases  what  should  be  the  rule  as  to  the  extra- 
territorial effect  of  law.  Thus  has  come  into  existence  a  body  of 
rules  which,  though  in  different  countries  they  exist  as  laws  only 
by  virtue  of  the  law  of  each  particular  country,  and  though  they 
are  by  no  means  everywhere  identical,  exhibit  wherever  they  exist 
marked  features  of  similarity.  This  likeness  is  increased  by  the 
fact  that  the  object  aimed  at  by  the  Courts  of  different  countries, 
in  the  adoption  of  rules  as  to  the  extra-territorial  effect  of  law, 
is  everywhere  in  substance  one  and  the  same.  This  aim  is,  in  the 
main,  to  secure  the  extra-territorial  effect  of  rights.  All,  or 
nearly  all,  the  rules  as  to  the  choice  of  law,  which  are  adopted  by 
different  civilised  countries,  are  provisions  for  applying  the  prin- 
ciple that  rights  duly  acquired  under  the  law  of  one  country  shall 
be  recognised  in  every  country.  1  nus  the  law  of  England  and  the 
law  of  France  seek  in  this  respect  the  same  object,  viz.,  the  secur- 
ing that  the  rights  which  a  man  has  attained  by  marriage,  by 
purchase,  or  otherwise,  e.  g.,  in  Italy,  shall  be  enforceable  and  en- 
joyable by  him  in  England  or  France,  and,  conversely,  that  the 
rights  which  he  has  acquired  in  England  may  be  enforceable  and 
enjoyable  by  him  in  Italy.  This  community  of  the  aim,  pursued 
by  the  Courts  and  legislatures  of  different  countries,  lies  at  the 
very  foundation  of  our  subject.  It  is  of  itself  almost  enough  to 
explain  the  great  similarity  between  the  rules  as  to  the  choice  of 
law  adopted  by  different  countries. 


NATURE    OF    SUBJECT.  15 

Fourthly.  The  department  of  law,  whereof  we  have  been 
considering  the  nature,  has  been  called  by  various  names,  none  of 
which  are  free  from  objection. 

By  many  American  writers,  and  notably  by  Story,  it  has  been 
designated  as  the  "conflict  of  laws."  The  apparent  appropriate- 
ness of  the  name  may  be  best  seen  from  an  example  of  the  kind 
of  case  in  which  a  ''conflict"  is  supposed  to  arise.  H  and  W,  Por- 
tuguese subjects,  are  first  cousins.  By  the  law  of  Portugal  they 
are  legally  incapable  of  intermarriage.  They  come  to  England  and 
there  marry  each  other  in  accordance  with  the  formalities  required 
by  the  English  Maniage  Acts.  Our  Courts  are  called  upon  to 
pronounce  upon  the  validity  of  the  marriage.  If  the  law  of 
England  be  the  test  the  marriage  is  valid ;  if  the  law  of  Portugal 
be  the  test  the  marriage  is  invalid.  The  question  at  issue,  it  may 
be  said,  is,  whether  the  law  of  England  or  the  law  of  Portugal 
is  to  prevail.  Here  we  have  a  conflict,  and  the  branch  of  law 
which  contains  rules  for  determining  it  may  be  said  to  deal  with 
the  conflict  of  laws,  and  be  for  brevity's  sake  called  by  that  title. 

The  defect,  however,  of  the  name  is  that  the  supposed  "con- 
flict" is  fictitious  and  never  really  takes  place.  If  English  tri- 
bunals decide  the  matter  in  hand,  with  reference  to  the  law  of 
Portugal,  they  take  this  course  not  because  Portuguese  law  van- 
quishes English  law,  but  because  it  is  a  principle  of  the  law  of 
England  that,  under  certain  circumstances,  marriages  between 
Portuguese  subjects  shall  depend  for  their  validity  on  conformity 
with  the  law  of  Portugal.  Any  such  expression,  moreover,  as 
"conflict,"  or  "collision,"  of  laws,  has  the  further  radical  defect 
of  concealing  from  view  the  circumstance  that  the  question  by 
the  law  of  what  country  a  given  transaction  shall  be  governed,  is 
often  a  matter  too  plain  to  admit  of  doubt.  No  judge  probably 
ever  doubted  that  the  validity  of  a  contract  for  the  purchase  and 
sale  of  goods  between  French  subjects  made  at  Paris,  and  per- 
formed, or  intended  to  be  performed,  in  France,  depends  upon  the 
rules  of  French  law.  The  term  conflict  of  laws  has  been  defended 
on  the  ground  of  its  applicability,  not  to  any  collision  between  the 
laws  themselves,  but  to  a  conflict  in  the  mind  of  a  judge  on  the 
question  which  of  two  systems  of  law  should  govern  a  given  case.. 


14  PRIVATE    INTERNATIONAL   LAW. 

This  suggestion  gives,  however,  a  forced  and  new  sense  to  a  re- 
ceived expression.  It  also  amounts  simply  to  a  plea  that  the  term 
conflict  of  laws  may  be  used  as  an  inaccurate  equivalent  for  the 
far  less  objectionable  phrase  choice  of  law. 

Modern  authors,  and  notably  Mr.  Westlake,  have  named  our 
subject  Private  International  Law. 

This  expression  is  handy  and  manageable.  It  brings  into 
light  the  great  and  increasing  harmony  between  the  rules  as  to 
the  application  of  foreign  law  which  prevails  in  all  civilised  coun- 
tries, such  as  England,  France,  and  Italy.  The  tribunals  of  dif- 
ferent countries,  as  already  pointed  out,  follow  similar  principles 
in  determining  what  is  the  law  applicable  to  a  given  case,  and  aim 
at  the  same  result,  namely,  the  recognition  in  every  civilised  coun- 
try of  rights  acquired  under  the  law  of  any  other  country.  Hence 
an  action  brought  to  enforce  a  right  acquired  under  the  law  of 
one  country  (e.  g.,  of  France)  will  in  general  be  decided  in  the 
same  manner  in  whatever  country  it  be  maintained,  whether,  that 
is  to  say,  it  be  brought  in  the  Courts  of  England  or  of  Germany. 
On  this  fact  is  based  the  defence  of  the  name  Private  International 
Law.  The  rules,  it  may  further  be  said,  which  the  words  desig- 
nate, affect  the  rights  of  individuals  as  against  one  another,  and 
therefore  belong  to  the  sphere  of  "private,"  not  of  public  law ;  and 
these  rules,  as  they  constitute  a  body  of  principles  common  to  all 
civilised  countries,  may  be  rightly  termed  "international." 

The  term,  however,  is  at  bottom  inaccurate.  The  words  pri- 
vate international  law  "should  mean,  in  accordance  with  that  use 
"of  the  word  'international'  which,  besides  being  well  established 
"in  ordinary  language,  is  both  scientifically  convenient  and  ety- 
"mologically  correct,  'a  private  species  of  the  body  of  rules  which 
"prevails  between  one  nation  and  another.'  Nothing  of  the  sort 
"is,  however,  intended;  and  the  unfortunate  employment  of  the 
"phrase,  as  indicating  the  principles  which  govern  the  choice  of 
"the  system  of  private  law  applicable  to  a  given  class  of  facts,  has 
"led  to  endless  misconception  of  the  true  nature  of  this  depart- 
"ment  of  legal  science."  Nor  does  the  inaccuracy  of  the  term 
end  here.  It  confounds  two  classes  of  rules,  which  are  generically 
different  from  each  other.     The  principles  of  international  law, 


NATURE    OF   'SUBJECT.  15 

properly  so  called,  are  truly  "international"  because  they  prevail 
between  or  among  nations ;  but  they  are  not  in  the  proper  sense  of 
the  term  ''laws,"  for  they  are  not  commands  proceeding  from  any 
&  >vereign.  On  the  other  hand,  the  principles  of  private  interna- 
tional law  are  "laws"  in  the  strictest  sense  of  that  term,  for  they 
are  commands  proceeding  from  the  sovereign  of  a  given  state, 
e.  g.j  England  or  Italy,  in  which  they  prevail ;  but  they  are  not 
"international,"  for  they  are  laws  which  determine  the  private 
rights  of  one  individual  as  against  another,  and  these  individuals 
may,  or  may  not,  belong  to  one  and  the  same  nation.  Authors,  in 
short,  who  like  Fcelix  divide  international  law  into  public  inter- 
national law  and  private  international  law,  use  the  words  interna- 
tional and  law  in  each  of  these  expressions  in  a  different  sense. 
Such  ambiguity  of  language,  unless  fully  acknowledged,  must 
lead,  as  it  has  led,  to  confusion  of  thought.  Nor  is  much  gained 
by  such  an  amendment  of  terminology  as  is  achieved  by  a  transpo- 
sition of  words.  The  expression  "international  private  law"  is  no 
doubt  a  slight  improvement  on  private  international  law,  as  it 
points  out  that  the  rules  which  the  name  denotes  belong  to  the 
domain  of  private  law.  But  the  name,  improve  it  as  you  will,  has 
the  insuperable  fault  of  giving  to  the  adjective  international  a 
meaning  different  from  the  sense  in  which  it  is  generally  and  cor- 
rectly employed. 

Other  names  for  our  subject,  such  as  "comity,"  the  "local 
limits  of  law,"  "intermunicipal  law,"  and  the  like,  have  not  ob- 
tained sufficient  currency  to  require  elaborate  criticism.  Their 
fault  is,  that  either  they  are  too  vague  for  the  designation  of  the 
topic  to  which  they  are  applied,  or  else  they  suggest  notions  which 
are  inaccurate.  Thus  the  term  "comity,"  as  already  pointed  out, 
is  open  to  the  charge  of  implying  that  a  judge,  when  he  applies 
foreign  law  to  a  particular  case,  does  so  as  a  matter  of  caprice  or 
favour,  whilst  the  term  "intermunicipal  law"  can  be  accurately 
used  only  by  giving  to  each  half  of  the  word  "kitermunicipal"  a 
sense  which  both  is  unusual  and  also  demands  elaborate  explana- 
tion. A  more  accurate  description  of  our  topic  is  (it  is  submitted) 
"the  extra-territorial  effect  of  law,"  or  better,  Professor  Holland's 
phrase  "the  extra-territorial   recognition  of  rights."     But   such 


16  PRIVATE   INTERNATIONAL  LAW. 

expressions  are  descriptions,  not  names.  A  writer,  therefore, 
called  upon  to  deal  with  our  topic  will  act  wisely  in  refusing  to  be 
tied  down  to  any  set  form  of  words.  He  will,  when  convenient, 
used  the  admittedly  inaccurate  terms,  conflict  of  laws,  or  private 
international  law.  But  he  will  himself  remember,  and  will  at- 
tempt to  impress  upon  his  readers,  that  these  names  are  nothing 
more  than  convenient  marks  by  which  to  denote  the  rules  main- 
tained by  the  Courts  of  a  given  country,  as  to  the  selection  of  the 
system  of  law  which  is  to  be  applied  to  the  decision  of  cases  that 
contain,  or  may  contain,  some  foreign  element,  and  also  the  rules 
maintained  by  the  Courts  of  a  given  country,  as  to  the  limits  of 
the  jurisdiction  to  be  exercised  by  its  own  Courts  as  a  whole,  or  by 
foreign  Courts. 


STATE  DEFINED. 
COOLEY'S  CONST.  LIM.  P.  3.  (6th  ed.) 

A  State  is  a  body  politic,  or  society  of  men,  united  together 
for  the  purpose  of  promoting  their  mutual  safety  and  advantage 
by  the  joint  efforts  of  their  combined  strength.  The  terms 
nation  and  State  are  frequently  employed,  not  only  in  the  law  of 
nations,  but  in  common  parlance,  as  importing  the  same  thing; 
but  the  term  nation  is  more  strictly  synonymous  with  people,  and 
while  a  single  State  may  embrace  different  nations  or  peoples,  a 
single  nation  will  sometimes  be  so  divided  politically  as  to  consh  - 
tute  several  States. 

In  American  constitutional  law  the  word  State  is  applied  to 
the  several  members  of  the  American  Union,  while  the  word 
nation  is  applied  to  the  whole  body  of  the  people  embraced  within 
the  jurisdiction  of  the  federal  government. 

Sovereignty,  as  applied  to  States,  imports  the  supreme,  abso- 
lute, uncontrollable  power  by  which  any  State  is  governed.  A 
State  is  called  a  sovereign  State  when  this  supreme  power  resides 
within  itself,  whether  resting  in  a  single  individual,  or  in  a  num- 
ber of  individuals,  or  in  the  whole  body  of  the  people.  In  the 
view  of  international  law,  all  sovereign  States  are  and  must  be 


LAW   OF    THE   LAND.  17 

equal  in  rights,  because  from  the  very  definition  of  sovereign 
State,  it  is  impossible  that  there  should  be,  in  respect  to  it,  any 
political  superior. 

The  sovereignty  of  a  State  commonly  extends  to  all  the  sub- 
jects of  government  within  the  territorial  limits  occupied  by  the 
associated  people  who  compose  it ;  and,  except  upon  the  high  seas, 
which  belong  equally  to  all  men,  like  the  air,  and  no  part  of  which 
can  rightfully  be  appropriated  by  any  nation,  the  dividing  line 
between  sovereignties  is  usually  a  territorial  line.  In  American 
constitutional  law,  however,  there  is  a  division  of  the  powers  of 
sovereignty  between  the  national  and  State  governments  by  sub- 
jects: the  former  being  possessed  of  supreme,  absolute,  and  un- 
controllable power  over  certain  subjects  throughout  all  the  States 
and  Territories,  while  the  States  have  the  like  complete  power, 
within  their  respective  territorial  limits,  over  other  subjects.  In 
regard  to  certain  other  subjects,  the  States  possess  powers  of  regu- 
lation which  are  not  sovereign  powers,  inasmuch  as  they  are  liable 
to  be  controlled,  or  for  the  time  being  to  become  altogether  dor- 
mant, by  the  exercise  of  a  superior  power  vested  in  the  general 
government  in  respect  to  the  same  subjects. 


INTERNATIONAL  LAW  A  PART  OF  THE  LAW  OF 

THE  LAND. 

COOLEY?S  BLACKSTONE,  Bk.  4,  Ch.  5.  (3rd  ED.) 
The  law  of  nations  is  a  system  of  rules,  deducible  by  natural 
reason,  and  established  by  universal  consent  among  the  civilized 
inhabitants  of  the  world ;  in  order  to  decide  all  disputes,  to 
regulate  all  ceremonies  and  civilities,  and  to  insure  the  observance 
of  justice  and  good  faith,  in  that  intercourse  which  must  fre- 
quently occur  between  two  or  more  independent  states,  and  the 
individuals  belonging  to  each.  This  general  law  is  founded 
upon  this  principle,  that  different  nations  ought  in  time  of  peace 
to  do  one  another  all  the  good  they  can,  and  in  time  of  war  as 
little  harm  as  possible,  without  prejudice  to  their  own  real  inter- 
ests.   And,   as   none   of   these    States   will   allow   a    superiority 


18  PRIVATE    INTERNATIONAL   LAW. 

in  the  other,  therefore  neither  can  dictate  or  prescribe  the  rules  of 
this  law  to  the  rest;  but  such  rules  must  necessarily  result  from 
those  principles  of  natural  justice,  in  which  all  the  learned  of 
every  nation  agree;  or  they  depend  upon  mutual  compacts  or 
treaties  between  the  respective  communities ;  in  the  construction 
of  which  there  is  also  no  judge  to  resort  to,  but  the  law  of  nature 
and  reason,  being  the  only  one  in  which  all  the  contracting  parties 
are  equally  conversant,  and  to  which  they  are  equally  subject. 

In  arbitrary  states,  this  law,  wherever  it  contradicts,  or  is 
not  provided  for  by,  the  municipal  law  of  the  country,  is  enforced 
by  the  roval  power ;  but  since  in  England  no  royal  power  can  in- 
troduce a  new  law,  or  suspend  the  execution  of  the  old,  therefore 
the  law  of  nations  (wherever  any  question  arises  which  is  prop- 
erly the  object  of  its  jurisdiction)  is  here  adopted  in  its  full  extent 
by  the  common  law,  and  is  held  to  be  a  part  of  the  law  of  the  land. 
And  those  acts  of  parliament  which  have  from  time  to  time  been 
made  to  enforce  this  universal  law,  or  to  facilitate  the  execution  of 
its  decisions,  are  not  to  be  considered  as  introductive  of  any  new 
rule,  but  merely  as  declaratory  of  the  old  fundamental  constitu- 
tions of  the  kingdom :  without  which  it  must  cease  to  be  a  part  of 
the  civilized  world.  Thus,  in  mercantile  questions,  such  as  bills 
of  exchange,  and  the  like ;  in  all  marine  causes,  relating  to  freight, 
average,  demurrage,  insurances,  bottomry,  and  others  of  a  simi- 
lar nature;  the  law  merchant,  which  is  a  branch  of  the  law  of 
nations,  is  regularly  and  constantly  adhered  to.  So,  too,  in  all 
disputes  relating  to  prizes,  to  shipwrecks,  to  hostages,  and  ran- 
som bills,  there  is  no  other  rule  of  decision  but  this  great  universal 
law.  collected  from  history  and  usage,  and  such  writers  of  all 
nations  and  languages  as  are  generally  approved  and  allowed  of. 

But  though  in  civil  transactions  and  questions  of  property 
between  the  subjects  of  different  states,  the  law  of  nations  has 
much  scope  and  extent,  as  adopted  by  the  law  of  England  ;  yet 
the  present  branch  of  our  inquiries  will  fall  within  a  narrow 
compass,  as  offences  against  the  law  of  nations  can  rarely  be  the 
object  of  the  criminal  law  of  any  particular  state.  For  offences 
against  this  law  are  principally  incident  to  whole  states  or  nations, 
in  which  case  recourse  can  only  be  had  to  war ;  which  is  an  appeal 


LAW   OF   THE    LAND.  19 

to  the  God  of  hosts,  to  punish  such  infractions  of  public  faith  as 
are  committed  by  one  independent  people  against  another :  neither 
state  having  any  superior  jurisdiction  to  resort  to  upon  earth  for 
justice.  But  where  the  individuals  of  any  state  violate  this  gen- 
eral law,  it  is  then  the  interest  as  well  as  duty  of  the  government, 
under  which  they  live,  to  animadvert  upon  them  with  a  becoming 
severity,  that  the  peace  of  the  world  may  be  maintained.  For  in 
vain  would  nations  in  their  collective  capacity  observe  these  uni- 
versal rules,  if  private  subjects  were  at  liberty  to  break  them  at 
their  own  discretion,  and  involve  the  two  states  in  a  war.  It  is 
therefore  incumbent  upon  the  nation  injured,  first  to  demand  sat- 
isfaction and  justice  to  be  done  on  the  offender,  by  the  State  to 
which  he  belongs,  and,  if  that  be  refused  or  neglected,  the  sov- 
ereign then  avows  himself  an  accomplice  or  abettor  of  his  sub- 
ject's crime,  and  draws  upon  his  community  the  calamities  of 
foreign  war. 


DOM1CIL. 

« 

DEFINITION  AND  REQUISITES  OF  DOMICIL. 
HAYES  v.  HAYES,  74  ILL.,   312.    (1874.) 

Writ  of  Error  to  the  Circuit  Court  of  Rock  Island  Count}  ; 
the  Hon.  G.  W  Pleasants,  Judge,  presiding. 

Air.  William  H.  Gest,  for  the  plaintiffs  in  error. 

Messrs.  Connelly  &  McNeal,  for  the  defendants  in  error. 

Mr.  Justice  Breese  delivered  the  opinion  of  the  Court: 

This  is  a  writ  of  error  to  the  Rock  Island  Circuit  Court,  to 
reverse  a  decree  entered  therein  on  the  chancery  side  of  that  court, 
in  a  proceeding  commenced  by  bill  on  behalf  of  Amherst  Hayes 
and  others,  claiming  to  be  the  heirs  at  law  of  the  Rev.  Harvey  H. 
Hayes,  deceased,  and  against  his  widow,  Maria  B.  Hayes,  who, 
with  one  Carlos  L.  Bascom,  had  taken  out  letters  of  administra- 
tion on  the  estate  of  the  decedent. 

It  appears  by  the  bill  that  Dr.  Hayes  died  on  the  20th  July, 
1867,  at  Rock  Island,  leaving  Maria  B.  Hayes,  his  widow,  and  no 
child  or  children,  nor  descendant  of  any  child,  and  no  parents. 
Letters  of  administration  were  granted  by  the  county  court  of 
Rock  Island  county  August  5,  1867.  The  bill  alleges  that  de- 
ceased was  a  resident  of  the  State  of  Iowa  at  the  time  of  his  death., 
within  the  view  of  the  law  of  that  State  as  to  distribution  of  the 
personal  estate  of  an  intestate;  that  the  appraisers  have  certified 
to  the  widow  the  'sum  of  eighteen  hundred  and  thirty-two  dollars 
as  the  "widow's  award,"  and  complains  that  she  claims  the  whole 
of  the  personal  estate.  The  prayer  of  the  bill  is,  that  this  award 
be  set  aside,  and  the  whole  surplus,  after  the  debts  are  paid,  may 
be  distributed  according  to  the  law  of  Iowa. 

An  issue  was  made  up  on  the  question,  where  was  the  de- 
ceased domiciled  at  the  time  of  his  death,  within  the  meaning  of 
the  law  as  to  the  distribution  of  the  personalty.  This  issue  was 
tried  by  the  court,  by  consent,  without  a  jury,  and  the  court  found 
that  this  State  was  the  domicile  of  the  deceased,  so  far  as  the  suc- 
cession to  his  personalty  was  concerned. 


DEFINITION    AND   REQUISITES   OF    DOMICIL.  21 

The  plaintiffs  in  error  insist  that  this  finding  is  against  the 
evidence. 

We  have  given  the  testimony,  voluminous  as  it  is,  a  careful 
reading  and  full  consideration,  and  have  reached  the  conclusion 
it  supports  the  decree. 

It  is  said  by  authoritative  text-writers,  that  the  term  "dom- 
icile." in  its  ordinary  acceptation,  means  the  place  where  a  person 
lives  or  has  his  home.  In  a  strict  legal  sense,  that  is  properly  the 
domicile  of  a  person,  where  he  has  his  true,  fixed,  permanent  home 
and  principal  establishment,  and  to  which,  whenever  he  is  absent, 
he  has  the  intention  of  returning.  Story's  Conn",  of  Laws,  39, 
Sec.  41.  It  is  further  said,  actual  residence  is  not  indispensable  to 
retain  a  domicile  after  it  is  once  acquired ;  but  it  is  retained, 
aninto  solo,  by  the  mere  intention  not  to  change  it  and  adopt  an- 
other,    lb.  42,  Sec.  44. 

Testing  this  case  by  these  rules,  the  finding  was  clearly  right. 
It  is  not  denied  that  the  domicile  of  Dr.  Hayes,  from  1852  to  May, 
i860,  was  Rock  Island,  at  which  time,  there  being  some  disagree- 
ment with  his  wife,  she  went  from  their  home  in  Rock  Island  on  a 
visit  of  uncertain  duration  to  her  relatives  in  Washington  city, 
and  he  himself  went  to  Bentonsport,  in  the  State  of  Iowa,  to  sup- 
ply a  pulpit  there  for  one  year.  Before  he  left  Rock  Island  he 
rented  the  homestead  and  a  part  of  the  furniture,  storing  the  bal- 
ance on  the  premises.  When  the  year  expired  he  engaged  for  an- 
other year,  which  terminated  in  the  spring  of  1862,  when  he  left, 
spending  the  spring  and  summer  in  visiting  his  wife  in  Washing- 
ton and  his  friends  in  the  East.  In  the  fall  of  1862  he  returned 
to  this  State,  visiting  some  of  his  relatives,  and  spent  the  winter 
with  a  brother,  Gordon  Hayes,  living  at  Brighton,  Iowa.  In  the 
spring  of  1863  he  accepted  an  invitation  to  supply  a  pulpit  at  Kos- 
suth, Iowa,  for  one  year,  and  after  its  expiration  he  renewed  the 
engagement  for  another  year,  but  neither  at  Bentonsport  nor  at 
Kossuth  was  he  installed  as  pastor.  Having  some  spare  funds, 
he  bought  in  Kossuth  a  house  and  lot,  on  speculation,  in  which  he 
slept,  taking  his  meals  at  a  hotel.  He  voted  at  the  election  in 
1863,  and  at  the  presidential  election  in  1864,  the  laws  of  Iowa 
conferring  the  elective    franchise  on   a  resident  for  six    months. 


22  PRIVATE   INTERNATIONAL   LAW. 

That  the  house  was  not  purchased  as  a  residence  is  clear  from  the 
testimony,  it  was  an  investment  merely. 

When  his  engagement  at  Kossuth  closed,  in  the  summer  of 
1865,  he  left  that  place  and  returned  to  Rock  Island,  staying  there 
but  a  short  time,  and  then  proceeding  to  Washington  city,  where 
his  wife  remained  engaged  in  keeping  a  boarding-house.  With 
the  exception  of  about  two  months  in  1866,  which  he  spent  at 
Rock  Island,  engaged  in  making  repairs  on  his  property  there,  he 
remained  at  Washington  with  his  wife,  until  the  last  of  June  or 
first  of  July,  1867,  when  he  returned  to  Rock  Island,  staying  but 
a  short  time,  proceeded  to  Kossuth,  collected  the  last  payment  due 
on  the  property  he  had  there  sold,  and  returned  to  Rock  Island 
with  his  library  and  some  other  articles  of  property,  and  while 
there,  on  the  twentieth  of  July,  1867,  he  made  a  sudden  exit  from 
this  world. 

At  the  time  of  his  death  he  was  the  owner  of  several  houses 
and  lots  in  the  city  of  Rock  Island,  and  other  real  estate  in  other 
parts  of  the  State.  His  wife,  the  defendant  in  this  suit,  was  at 
no  time  in  Iowa,  whilst  her  husband  resided  there ;  and  after  his 
death,  closing  up  her  affairs  in  Washington,  she  returned  to  the 
old  homestead,  where  she  has  since  remained. 

There  is  a  strong  current  running  through  all  the  mass  of 
testimony  tending  to  show  it  was  never  the  intention  of  Dr.  Hayes 
to  make  Iowa  his  home.  It  is  inferable  he  would  have  done  so 
had  his  wife  joined  him  there  and  been  pleased  with  the  place  and 
prospects.  All  his  letters,  and  much  of  the  testimony,  go  to  sho.w 
Iowa  was  not  regarded  by  him  as  his  home.  Nothing  can  be  in- 
ferred from  the  fact  of  his  having  voted  there ;  that  act  was  con- 
sistent with  his  domicile  in  this  State,  the  law  of  Iowa  giving  the 
right  to  a  resident  of  six  months.  He  was  such  resident,  un- 
doubtedly, and  as  such  had  a  right  to  vote.  This  could,  by  no 
possibility,  effect  a  change  of  domicile.  To  effect  a  change  of 
domicile  there  must  be  an  actual  abandonment  of  the  first  domicile, 
coupled  with  an  intention  not  to  return  to  it,  and  there  must  be  a 
new  domicile  acquired  by  actual  residence  within  another  juris- 
diction, coupled  with  the  intention  of  making  the  last  acquired 
residence  a  permanent  home.     Nothing  of  this  is  discernible  in 


DOMICILS   OF   ORIGIN   AND    OF    CHOICE.  23 

the  testimony  in  this  record.  The  case  of  Smith  v.  The  People, 
44  111.  1 6,  may  be  referred  to  in  support  of  this  doctrine,  and  other 
cases  cited.  SmitJi  et  al.  v.  Croom  ct  al.  7  Fla.  200;  Shaw  v. 
Shaw,  98  Mass.  158.  But  the  doctrine  does  not  need  the  citation 
of  authorities  in  its  suppoit. 

There  can  be  no  doubt  that  the  unsettled  condition  of  the 
deceased  was  in  a  great  degree  owing  to  domestic  disturbances. 
The  great  bulk  of  his  property  was  in  Rock  Island,  and  to  that 
place  his  inclinations  would  naturally  tend.  To  that  his  thoughts 
would  revert,  for  it  was  his  home,  which  he  had  never  abandoned ; 

"He  still  had  hopes — his  long  vexations  past — 
There  to  return,  and  die  at  home  at  last ;" 

and  his  hope  was  accomplished. 

It  is  conceded,  domicile  is  a  question  of  fact  and  intention. 
This  is  the  proposition  we  have  argued,  and  from  the  evidence 
we  are  satisfied  Dr.  Hayes  had  no  fixed,  permanent  home  in  Iowa, 
nor  any  other  home  than  Rock  Island,  and  the  circuit  court  in  so 
rinding  found  the  truth,  as  we  understand  it.  And  the  decree  of 
that  court  must  be  affirmed.  The  domicile  of  succession  to  the 
estate  of  Dr.  Hayes  was  in  the  State  of  Illinois  at  the  time  of  his 
death. 

Decree  affirmed. 


DOMICILS  OF  ORIGIN  AND  OF  CHOICE. 
UDNY  V.  UDNY.  1.  L.  R.  SCOTCH  &  DIV.  APP.  CS.  441.  (1869.) 
The  late  Colonel  John  Robert  Fullerton  Udny,  of  Udny,  in 
the  county  of  Aberdeen,  though  born  at  Leghorn,  where  his  father 
was  consul,  had  by  paternity  his  domicil  in  Scotland.  At  the  age 
of  fifteen,  in  the  year  1794,  he  was  sent  to  Edinburgh,  where  he 
remained  for  three  years.  In  1797  he  became  an  officer  in  the 
Guards.  In  1802  he  succeeded  to  the  family  estate.  In  1812  he 
married  Miss  Emily  Fitghugh, — retired  from  the  army, — and  took 
upon  lease  a  house  in  London,  where  he  resided  for  thirty-two 
years,  paying  occasional  visits  to  Aberdeenshire. 

In  1844,  having  got  into    pecuniary  difficulties,  he  broke  up 
his  establishment  in  London  and  repaired  to  Boulogne,  where  he 


24  PRIVATE   INTERNATIONAL   LAW. 

remained  for  nine  years,  occasionally,  as  before,  visiting  Scotland. 
In  1846  his  wife  died,  leaving  the  only  child  of  her  marriage,  a  son, 
who,  in  1859,  died  a  bachelor. 

Some  time  after  the  death  of  his  wife  Colonel  Undy  formed  at 
Boulogne  a  connection  with  Miss  Ann  Allat,  which  resulted  in  the 
birth  at  Camberzvell,  in  Surrey,  on  the  9th  of  May,  1853,  of  a  son, 
the  above  respondent,  whose  parents  were  undoubtedly  unmarried 
when  he  came  into  the  world.  They  were,  however,  united  after- 
wards in  holy  matrimony  at  Ormiston,  in  Scotland,  on  the  2nd 
of  January,  1854,  and  the  question  was  whether  the  Respond- 
ent, under  the  circumstances  of  the  case,  had  become  legitimate 
per  subseqnens  inatrinionium. 

The  Court  of  Session  (First  Division)  on  the  14th  of  De- 
cember, 1866  (3rd  Series,  vol.  v.  p.  164),  decided  that  Colonel 
U day's  domicil  of  origin  was  Scotch,  and  that  he  had  never  altered 
or  lost  it,  notwithstanding  his  long  absences  from  Scotland.  They 
therefore  found  that  his  son,  the  Respondent,  "though  illegitimate 
at  his  birth,  was  legitimated  by  the  subsequent  marriage  of  his 
parents."  Hence  this  appeal,  which  the  House  regarded  as  in- 
volving questions  of  greatly  more  than  ordinary  importance. 

The  Appellant  argued  his  own  case. 

Sir  Ronndell  Palmer,  Q.  C,  Mr.  Mellish,  O.  C,  Mr.  Frascr. 
and  Mr.  Bristozv,  appeared  for  the  Respondent. 

The  following  opinions  of  the  Law  Peers  fully  state  the  facts, 
the  authorities,  and  the  legal  reasoning. 
The  Lord  Chancellor: — 

My  Lords, — In  this  case  the  Appellant  prays  a  judicial  decla- 
ration that  the  Respondent  is  a  bastard, — and  is  not  entitled  to  suc- 
ceed to  the  entailed  estates  of  Udny,  in  Aberdeenshire. 

The  question  depends  upon  what  shall  be  determined  to  have 
been  the-  domicil  of  the  Respondent's  father,  the  late  Colonel 
Udny,  at  the  time  of  his  birth, — at  the  time  of  the  Respondent's 
birth, — and  at  the  time  of  the  Colonel's  marriage  with  the  Re- 
spondent's mother. 

The  Appellant,  who  argued  his  case  in  person  with  very  con- 
siderable ability,  contended  : — First :  That  the  domicil  of  origin  of 
Colonel  Udny  was  English.     Secondly :  That  even  if  that  were  not 


DOMICILS   OF    ORIGIN    AND   OF    CHOICE.  '2o 

g#,  vet  that  at  the  time  of  his  first  marriage,  in  1812,  he  had  aban- 
doned Scotland  for  England,  sold  his  commission  in  the  army,  took 
a  house  on  lease  for  a  long  term  in  London,  and  resided  there  till 
he  left  England  for  France  in  1844,  for  the  purpose  of  avoiding 
his  creditors;  and  that  having  thus  acquired  an  English  domicil 
he  retained  it,  and  never  re-acquired  his  Scotch  domicil.  Thirdly : 
That,  at  all  events,  if  he  did  recover  his  Scotch  domicil,  yet  it  was 
not  recovered  at  the  date  of  the  Respondent's  birth  in  May,  1853. 
nor  even  at  the  date  of  the  intermarriage  of  the  Respondent's  par- 
ents in  January,  1854. 

As  regards  the  first  question,  your  Lordships  did  not  hear  the 
Respondents.  You  were  satisfied  that  Colonel  Udny's  father,  the 
consul,  had  never  abandoned  his  Scottish  domicil.  Consequently 
you  held  that  Colonel  Udny's  own  domicil  of  origin  was  clearly 
Scotch,  that  having  been  the  domicil  of  his  father  at  the  Colonel's 
birth. 

A  more  difficult  inquiry  arose  as  to  the  domicil  of  Colonel 
Udny  at  the  date  of  the  Respondent's  birth  in  May,  1853. 

Colonel  Udny  appears  to  have  left  the  army  about  the  same 
time  that  he  married  his  first  wife,  viz.  in  1812,  when  he  executed 
a  contract  and  other  instruments  connected  with  his  marriage,  con- 
taining provisions  referable  to  Scottish  law,  and  describing  him- 
self as  of  Udny,  in  the  county  of  Aberdeen.  He,  on  his  marriage, 
however,  took  a  long  lease  of  a  house  in  London,  in  which  he  re- 
sided till  1844.  He  made  frequent  visits  to  Scotland,  but  had  no 
residence  there.  He  at  one  time  contemplated  restoring  Udny 
Castle — and  even  three  years  after  he  had  commenced  his  resi- 
dence in  London  appears  to  have  still  thought  it  possible  that  he 
might  complete  the  restoration — and  plans  were  about  that  time 
submitted  to  him  for  that  purpose.  For  many  years,  however,  he 
seems  to  have  abandoned  all  hope  of  so  doing,  owing  to  his  means 
being  insufficient.  He  was  appointed  a  magistrate  in  Scotland, 
but  appears  not  to  have  acted  as  such.  When  in  Scotland  he  usu- 
ally resided  with  friends,  but  occassionally  at  hotels  in  the  neigh- 
borhood of  his  property,  and  he  continually  received  detailed  ac- 
counts of  the  estates,  and  took  much  interest  in  their  manage- 
ment.    His  choice  of  England  as  a  residence  appears  to  have  been 


26  PRIVATE   INTERNATIONAL   LAW. 

considerably  influenced  by  his  taste  for  the  sports  of  the  turf.     B,y 
his  first  marriage  he  had  a  son,  John  Augustus  Udny. 

The  Judge  Ordinary  and  the  Court  of  Session  concurred  in 
opinion  that  the  long  and  habitual  residence  in  England  was  not 
sufficient  to  amount  to  an  abandonment  of  the  Colonel's  Scottish 
domicil  of  origin.  This  point,  I  confess,  appears  to  me  to  be  one 
of  great  nicety.  I  am  not  prepared  to  say  that  I  am  satisfied  with 
that  conclusion :  but  neither  should  I  be  prepared,  without  further 
consideration,  to  recommend  to  your  Lordships  a  reversal  of  the 
judgment  appealed  from  on  the  ground  that  the  opinions  of  the 
Court  below  upon  this  point   were  erroneous. 

Owing  to  this  action  having  been  raised  in  the  Colonel's  lite- 
time,  the  Court  below  had  the  advantage  of  the  testimony  of  Colo- 
nel Udny  himself,  a  circumstance  which  does  not  often  occur  in 
questions  of  domicil.  It  appears  to  have  been  very  candidly  given, 
and  (as  was  observed  by  the  Lord  Ordinary)  by  no  means  over- 
states the  case  in  favor  of  the  continuance  of  his  Scottish  domicil. 

Several  other  witnesses  were  examined,  who  do  not  carry  the 
case  further.  But,  be  this  as  it  may,  the  events  in  the  Colonel's 
life,  subsequent  to  1844,  appear  to  me  to  be  those  upon  which  the 
question  of  his  domicil  at  the  birth  of  the  Respondent  really 
depend. 

In  1844,  t'ie  Colonel,  after  having  been  involved  for  some  lime 
in  pecuniary  difficulties  (owing  chiefly  to  his  connection  with  the 
turf),  was  compelled  to  leave  England,  in  order  to  avoid  his  cred- 
itors. He  at  first  thought  of  taking  some  house  "in  the  country." 
by  which  I  think  he  meant  in  the  rural  parts  of  England ;  but  after- 
wards the  pressure  of  creditors  became  too  great  to  admit  of  his 
so  doing,  and  he  appears,  in  the  autumn,  to  have  visited  Scotland  r 
where  correspondence  took  place  between  himself  and  his  agent 
as  to  arranging  a  trust  deed  by  which  Colonel  Udny  and  his  son, 
John  Augustus,  were  to  make  provision,  as  far  as  possible,  for  the 
payment  of  their  debts.  On  the  2nd  of  October,  he  writes  to  his 
agent,  mentioning  that  a  creditor  is  pressing  for  immediate  pay- 
ment of  ^1200 — "So  let  there  be  no  time  lost."  And  by  a  letter 
of  his  son  of  the  4th  of  November,  1844,  it  appears  that  his  father 
had  left  England  for  Calais  on  the  previous  day.     He  about  this 


DOMICILS   OF    ORIGIN    AND   OF    CHOICE.  27 

time  sold  the  lease  of  the  London  house  in  which  he  had  so  long 
resided.  He  sold  also  (as  he  himself  states  in  his  evidence)  all  his 
furniture  and  "everything  that  was  in  the  house,  including  what 
had  belonged  to  his  mother,  his  sister,  and  his  first  wife."He  went 
from  Calais  to  Boulogne,  and  there  resided  in  a  hired  house  till 
1853.     He  says  in  his  evidence : 

When  I  went  to  Boulogne  I  had  no  further  connection  with 
London.  I  had  a  married  sister  living  there,  and  various  other 
relations.  During  the  nine  years  when  my  headquarters  were  at 
Boulogne  I  never  resided  in  London.  The  time  that  I  came  over 
for  my  wife's  confinement  in  1853  was  the  first  time  that  I  had 
visited  London  after  leaving  it  for  Boulogne.  I  remained  there 
at  that  time  only  about  a  couple  of  days  and  returned  to  Boulogne. 
While  1  was  at  Boulogne  I  came  over  more  than  once  to  Scotland 
to  visit  my  property.  These  were  not  long  visits,  but  I  did  raake 
them. 

The  wife  alluded  to  in  the  above  statement  is  the  mother  of 
the  Respondent.  The  Colonel's  first  wife  did  not  go  with  him  to 
Boulogne,  but  she  joined  him  for  a  short  time  in  1845,  leaving  him 
afterwards  on  account  of  ill-health,  and  residing  with  his  brother 
in  London.     She  died  in  1846. 

The  Colonel  at  Boulogne  formed  an  illicit  connection  with 
the  mother  of  the  Respondent,  and  in  May,  1853,  came  to 
England  in  consequence  of  a  wish  that  she  should  be  attended  in 
her  confinement  by  an  English  accoucheur ;  and  on  the  9th  of  May, 
1853,  tne  Respondent  was  born  at  Cambenuell.  The  Colonel  ap- 
pears to  have  returned  almost  immediately  to  Boulogne.  He  had 
been  living  on  a  very  scanty  allowance — his  eldest  son,  !,oo,  was 
embarrassed — and  at  a  very  early  period  after  the  birth  of  the 
Respondent  the  father  and  son  appear  to  have  thought  that  the 
birth  of  this  child  might  facilitate  the  barring  of  the  entail  of  the 
Scotch  estates ;  for  in  a  letter  of  the  29th  of  May,  1853,  the  Colonel 
writes  to  his  son :  "I  shall  be  glad  to  hear  of  your  interview  with 
Mr.  Skinner"  (their  legal  adviser).  "I  think  the  great  difficulty 
will  be  the  uncertainty  of  the  child's  life ;  however,  you  will  talk 
over  all  these  matters  with  him." 

The  Colonel  was  advised  that  by  marrying  the  Respondent's 


28  PRIVATE   INTERNATIONAL   LAW. 

mother  he  might,  according  to  the  law  of  Scotland,  render  the  Re- 
spondent legitimate,  and  that  then  the  concurrence  of  the  Appel- 
lant in  barring  the  entail  would  not  be  requisite.  The  advice  on 
this  latter  point  was  erroneous ;  but  it  is  enough  to  say  that  the 
Colonel  came  over  to  Scotland  in  November,  1853,  clearly  with  the 
intent  to  celebrate  a  marriage  with  the  Respondent's  mother,  and 
with  the  hope  of  raising  money  for  the  benefit  of  his  elder  son  and 
himself  by  getting  rid  of  the  entail.  He  was  under  an  impression 
that  his  English  creditors  could  not  molest  him  whilst  in 
Scotland.  He  was  much  mortified  afterwards  to  find  that  this 
was  not  the  case,  and  wrote  several  letters  to  his  son  and  others 
expressive  of  his  disgust  at  having  been  hurried  away  from 
Boulogne,  and  his  dislike  to  residing  in  Scotland.  But  I  cannot 
bring  my  mind  to  doubt  that  his  intention  in  returning  to  Scotland 
was  to  do  that  which  he  accomplished,  namely,  to  marry,  in  regu- 
lar form,  the  Respondent's  mother,  and  for  that  purpose  to  be 
domiciled  there. 

In  his  letter  of  the  9th  of  July,  1859,  he  expressly  asserts  it 
to  have  been  his  intention  in  1853  to  be  permanently  domiciled  in 
Scotland;  but  that  letter  may  be  open  to  the  objection  that  it  was 
written  very  shortly  ante  litem  motam.  I  do  not  think  that  we  can 
safely  rely  on  the  deed  of  disposition  by  his  elder  son  of  the  2nd  of 
December,  1853,  which  recites  "that  the  Colonel  had  made  ar- 
rangements to  return  again  to  and  to  remain  in  Scotland,"  because 
the  father  was  not  a  party  to  that  instrument.  But,  on  the  other 
hand,  though  the  recital  itself  may  not  be  evidence,  yet  the  Colonei 
took  advantage  of  that  instrument.  And  the  whole  course  of  the 
arrangements  made  shows  that  the  Colonel's  intent,  for  which 
alone  he  came  to  Scotland,  was  by  his  marriage  to  make  the  Re- 
spondent legitimate,  and  by  means  of  that  legitimation  to  deal  with 
the  estates.  These  objects  required  a  Scottish  domicil :  and  it 
would  be  singular  to  hold  that  he  having,  in  fact,  married  on  the 
2nd  of  January,  1854,  and  resided  in  Scotland  thenceforth  to  his 
death  in  1861  (after  the  raising  of  the  present  action),  the  domicil 
must  not  be  taken  to  have  been  Scottish,  as  it  ought  to  be,  for  the 
purposes  he  had  in  view  from  the  time  of  his  return  in  1853.  It 
is  true  that  the  death  of  his  elder  son  in  the  interval  between  the 


DOMICILS   OF    ORIGIN    AND   OF    CHOICE.  29 

marriage  and  death  of  the  Colonel,  and  the  consequent  falling  in 
of  the  policies  of  insurance  on  his  life,  placed  the  Colonel  to  a  cer- 
tain degree  in  an  easier  position,  and  removed  his  apprehension 
of  difficulty  from  his  creditors :  but  I  think  his  possible  intention 
to  leave  Scotland  (if  molested  by  creditors)  in  no  way  disproves 
the  existence  of  a  resolution  to  remain,  as  he  did,  in  that  country 
(if  allowed  so  to  do)  as  his  chosen  and  settled  abode. 

It  seems  therefore  clear  to  me  that  the  Colonel  was,  at  the 
time  of  his  marriage,  domiciled  in  Scotalnd;  but  the  question  re- 
mains as  to  what  was  his  domicil  in  May,  1853,  at  the  time  of  the 
Respondent's  birth. 

If  he  were  domiciled  in  England  up  to  1844,  and  retained  an 
English  domicil  up  to  and  after  May,  1853,  tnen  tne  question 
would  arise,  which  has  not  been  determined  in  any  case  by  the 
Scottish  Courts,  whether  the  child,  being  illegitimate  at  its  birth, 
and  its  putative  father  not  having  at  that  time  a  power  of 
legitimating  him  by  means  of  a  subsequent  marriage  with  his 
mother,  could  be  legitimated  by  his  putative  father  subsequently 
acquiring  a  Scottish  domicil  before  marriage  with  the  mother. 

I  have  myself  held,  and  so  have  other  Judges  in  the  English 
Courts,  that  according  to  the  law  of  England  a  bastard  child 
whose  putative  father  was  English  at  its  birth  could  not  be  legiti- 
mated by  the  father  afterwards  acquiring  a  foreign  domicil  and 
marrying  the  mother  in  a  country  by  the  law  of  which  a  subse- 
quent marriage  would  have  legitimated  the  child.  I  see  no  reason 
to  retract  that  opinion.  The  status  of  the  child, — with  respect  to 
its  capacity  to  be  legitimated  by  the  subsequent  marriage  of  its 
parents, — depends  wholly  on  the  status  of  the  putative  father,  not 
on  that  of  the  mother.  If  the  putative  father  have  an  English 
domicil  the  English  law  does  not,  at  the  birth  of  the  child,  take  no- 
tice of  the  putative  father's  existence.  But  if  his  domicil  be  Scot- 
tish, or  of  any  other  country  allowing  legitimation,  though  the 
mother  be  English  at  the  birth,  the  putative  father  (as  in 
Munro  v.  Munro  (7  CI.  &  F.  842)  is  capable  of  legitimating  the 
child.  The  foreign  law,  though  deeming  the  child  to  be  filius 
nullius  at  birth,  yet  recognizes  the  father  as  such  at  the  moment  of 
his  acknowledging  the  child,  either  by  marriage  and  formal  recog- 


30  PRIVATE   INTERNATIONAL   LAW. 

nition,  as  in  France,  or  by  marriage  only,  as  in  Scotland.  I  do  not 
think  that  the  English  law  can  recognise  a  capacity  in  any  Eng- 
lishman, by  change  of  domicil,  to  cause  his  paternity  and  conse- 
quent power  of  legitimation  to  be  recognised.  But  however  this 
may  be,  the  question  does  not,  in  my  judgment,  here  arise. 

I  am  of  opinion  that  the  English  domicil  of  Colonel  Udny, 
if  it  were  ever  acquired,  was  formally  and  completely  abandoned 
in  1844  when  he  sold  his  house  and  broke  up  his  English  establish- 
ment with  the  intention  not  to  return.  And,  indeed,  his  return  to 
that  country  was  barred  against  him  by  the  continued  threat  of 
process  by  his  creditors.  I  think  that  on  such  abandonment  his 
domicil  of  origin  revived.  It  is  clear  that  by  our  law  a  man  must 
have  some  domicil,  and  must  have  a  single  domicil.  It  is  clear,  on 
the  evidence,  that  the  Colonel  did  not  contemplate  residing  in 
France — and,  indeed,  that  has  scarcely  been  contended  for  by  the 
Appellant.  But  the  Appellant  contends  that  when  once  a  new  domi- 
cil is  acquired,  the  domicil  of  origin  is  obliterated,  and  cannot  be  re- 
acquired more  readily  or  by  any  other  means  than  those  by  which 
the  first  change  of  the  original  domicil  is  brought  about,  namely, 
animo  ct  facto.  He  relied  for  this  proposition  on  the  decision  in 
MnnrO  v.  Douglas  (5  Madd.  379)  where  Sir  John  Leach  certainly 
held  that  a  Scotsman,  having  acquired  an  Anglo-Indian  domicil, 
and  having  finally  quitted  India,  but  not  yet  having  settled  else- 
where, did  not  re-acquire  his  original  domicil ;  saying  expressly, 
"I  can  find  no  difference  in  principle  between  an  original  domicil 
and  an  acquired  domicil."  That  he  acquired  no  new  domicil  may 
be  conceded,  but  it  appears  to  me  that  sufficient  weight  was  not 
given  to  the  effect  of  the  domicil  of  origin,  and  that  there  is  a  very 
substantial  difference  in  principle  between  an  original  and  an  ac- 
quired domicil.  I  shall  not  add  to  the  many  ineffectual  attempts 
to  define  domicil.  But  the  domicil  of  origin  is  a  matter  wholly 
irrespective  of  any  animus  on  the  part  of  its  subject.  He  acquires 
a  certain  status  chilis,  as  one  of  your  Lordships  has  designated  it, 
which  subjects  him  and  his  property  to  the  municipal  jurisdiction 
of  a  country  which  he  may  never  even  have  seen,  and  in  which  he 
may  never  reside  during  the  whole  course  of  his  life,  his  domicil 
being  simply  determined  by  that  of  his  father.     A  change  of  that 


DOMICILS   OF    ORIGIN    AND   OF    CHOICE.  31 

domicil  can  only  be  effected  animo  et  facto — that  is  to  say,  by  the 
choice  of  another  domicil,  evidenced  by  residence  within  the  terri- 
torial limits  to  which  the  jurisdiction  of  the  new  domicil  extends. 
He,  in  making  this  change,  does  an  act  which  is  more  nearly  desig- 
nated by  the  word  "settling"  than  by  any  one  word  in  our  lan- 
guage. Thus  we  speak  of  a  colonist  settling  in  Canada  or  Aus- 
tralia, or  of  a  Scotsman  settling  in  England,  and  the  word  is  fre- 
quently used  as  expressive  of  the  act  of  change  of  domicil  in  the 
various  judgments  pronounced  by  our  Courts.  But  this  settle- 
ment ammo  ct  facto  by  which  the  new  domicil  is  acquired  is,  of 
course,  susceptible  of  abandonment  if  the  intention  be  evidenced  by 
facts  as  decisive  as  those  which  evidenced  its  acquirement. 

It  is  said  by  Sir  John  Leach,  that  the  change  of  the  newly- 
acquired  domicil  can  only  be  evidenced  by  an  actual  settling  else- 
where, or  (which  is,  however,  a  remarkable  qualification)  by  the 
subject  of  the  change  dying  in  itinera  when  about  to  settle  himself 
elsewhere.  But  the  dying  in  it  in  ere  to  a  wholly  new  domicil  would 
not,  I  apprehend,  change  a  domicil  of  origin  if  the  intended  new 
domicil  were  never  reached.  So  that  at  once  a  distinction  is  ad- 
mitted between  what  is  necessary  to  re-acquire  the  original  domicil 
and  the  acquiring  of  a  third  domicil.  Indeed,  the  admission  of  Sir 
John  Leach  seems  to  have  been  founded  on  the  actual  decision 
of  the  case  of  Colville  v.  Saunders,  cited  in  full  in  Munroe  v. 
Douglas,  from  the  Dictionary  of  Decisions.  In  that  case,  a  person 
of  Scottish  origin  became  domiciled  at  St.  Vincent,  but  left  that 
island,  writing  to  his  father  and  saying  that  his  health  was  injured, 
and  he  was  going  to  America;  and  that  if  he  did  not  succeed  in 
America  he  would  return  to  his  native  country.  He  was  drowned 
in  Canada,  and  some  memoranda  were  found  indicating  an  inten- 
tion to  return  to  Scotland,  and  it  was  held  that  his  Scottish  domi- 
cil had  revived. 

It  seems  reasonable  to  say  that  if  the  choice  of  a  new  abode 
and  actual  settlement  there  constitute  a  change  of  the  original 
domicil,  then  the  exact  converse  of  such  a  procedure,  viz.,  the  in- 
tention to  abandon  the  new  domicil,  and  an  actual  abandonment  of 
it,  ought  to  be  equally  effective  to  destroy  the  new  domicil.  That 
which  may  be  acquired  may  surely  be  abandoned,  and  though  a 


32  PRIVATE   INTERNATIONAL  LAW. 

man  cannot,  for  civil  reasons,  be  left  without  a  domicil,  no  such 
difficulty  arises  if  it  be  simply  held  that  the  original  domicil  re- 
vives. That  original  domicil  depended  not  on  choice  but  attached 
itself  to  its  subject  on  his  birth,  and  it  seems  to  me  consonant  both 
to  convenience  and  to  the  currency  of  the  whole  law  of  domicil  to 
hold  that  the  man  born  with  a  domicil  may  shift  and  vary  it  as 
often  as  he  pleases,  indicating  each  change  by  intention  and  acr, 
whether  in  its  acquisition  or  abandonment;  and  further,  to  hold 
that  every  acquired  domicil  is  capable  of  simple  abandonment  ani- 
mo  et  facto  the  process  by  which  it  was  acquired,  without  its  being 
necessary  that  a  new  one  should  be  at  the  same  time  chosen,  other- 
wise one  is  driven  to  the  absurdity  of  asserting  a  person  to  be 
domiciled  in  a  country  which  he  has  resolutely  forsaken  and  cast 
off,  simply  because  he  may  (perhaps  for  years)  be  deliberating 
before  he  settles  himself  elsewhere.  Why  should  not  the  domicil 
of  origin  cast  on  him  by  no  choice  of  his  own,  and  changed  for  a 
time,  be  the  state  to  which  he  naturally  falls  back  when  his  first 
choice  has  been  abandoned  animo  et  facto,  and  whilst  he  is  delib- 
erating before  he  makes  a  second  choice. 

Lord  Cottenham  in  Munro  v.  Munro  (7  CI.  &  F.  871)  says, 
*'So  firmly  indeed  did  the  civil  law  consider  the  domicil  of  origin 
to  adhere  that  it  holds  that  if  it  be  actually  abandoned  and  a  domi- 
cil acquired,  but  that  again  abandoned,  and  no  new  domicil  ac- 
quired in  its  place,  the  domicil  of  origin  revives."  Xo  au- 
thority is  cited  by  his  Lordship  for  this.  He  probably  alluded 
to  some  observations  which  occur  in  the  case  of  La  Virginic  15 
Rob.  Adm.  99)  where  Sir  William  Scott  said : 

It  is  always  to  be  remembered  that  the  native  character  easily 
reverts,  and  that  it  requires  fewer  circumstances  to  constitute 
domicil  in  the  case  of  a  native  subject  than  to  impress  the  national 
character  on  one  who  is  originally  of  another  country. 

In  the  case  of  The  Indian  Chief  (3  Rob.  Adm.  12)  the  ques- 
tion was  whether  the  ship  was  the  property  of  a  British  subject : 
for  if  so,  her  trading  was  illegal.  The  owner,  Mr.  Johnson, 
averred  that  he  was  an  American.  Sir  William  Scott  held  him  to 
be  an  American  by  origin,  but  that  having  come  to  England  in 
1783  and  remained  till  1797,  he  had  become  an  English  merchant. 


DOMICILS   OF    ORIGIN   AND   OF    CHOICE.  33 

But  he  quitted  England  before  the  capture  of  the  vessel,  and  letters 
were  produced  shewing  his  intention  to  return  to  America,  which 
he  does  not  appear  to  have  reached  until  after.  And  Sir  William 
Scott  says,  "The  ship  arrives  a  few  weeks  after  his  departure,  and 
taking  it  to  be  clear  that  the  natural  character  of  Mr.  Johnson  as 
a  British  merchant  was  founded  on  residence  only,  that  it  was  ac- 
quired by  residence,  and  rested  on  that  circumstance  alone,  it  must 
be  held  that  from  the  moment  he  turned  his  back  on  the  country 
where  he  had  resided  on  his  way  to  his  own  country  he  was  in  the 
act  of  resuming  his  original  character,  and  is  to  be  considered  as 
an  American.  The  character  that  is  gained  by  residence  ceases  by 
residence.  It  is  an  adventitious  character  which  no  longer  ad- 
heres to  him  from  the  moment  that  he  puts  himself  in  motion  bona 
tide  to  quit  the  country  sine  animo  revertendi" 

Story,  in  his  Conflict  of  Laws,  sect.  47  (at  the  end),  says :  "If 
a  man  has  acquired  a  new  domicil  different  from  that  of  his  birth, 
and  he  removes  from  it  with  intention  to  resume  his  native  domi- 
cil, the  latter  is  re-acquired  even  while  he  is  on  his  way,  for  it 
reverts  from  the  moment  the  other  is  given  up." 

The  qualification  that  he  must  abandon  the  new  domicil  with 
the  special  intent  to  resume  that  of  origin  is  not,  I  think,  a  reason- 
able deduction  from  the  rules  already  laid  down  by  decision,  be- 
cause intent  not  followed  by  a  definitive  act  is  not  sufficient.  The 
more  consistent  theory  is,  that  the  abandonment  of  the  new  domi- 
cil is  complete  animo  et  facto,  because  the  factum  is  the  abandon- 
ment, the  animus  is  that  of  never  returning. 

I  have  stated  my  opinion  more  at  length  than  I  should  have 
done  were  it  not  of  great  importance  that  some  fixed  common 
princilpes  should  guide  the  Courts  in  every  country  on  interna- 
tional questions.  In  questions  of  international  law  we  should  not 
depart  from  any  settled  decisions,  nor  lay  down  any  doctrine  in- 
consistent with  them.  I  think  some  of  the  expressions  used  in 
former  cases  as  to  the  intent  "exuere  patriam,"  or  to  become  "a 
Frenchman  instead  of  an  Englishman,"  go  beyond  the  question  of 
domicil.  The  question  of  naturalization  and  of  allegiance  is  dis- 
tinct from  that  of  domicil.  A  man  may  continue  to  be  an  English- 
man, and  yet  his  contracts  and  the  succession  to  his  estate  may 


34  PRIVATE    INTERNATIONAL   LAW. 

have  to  be  determined  by  the  law  of  the  country  in  which  he  has 
chosen  to  settle  himself.  He  cannot,  at  present  at  least,  put  off 
and  resume  at  will  obligations  of  obedience  to  the  government  of 
the  country  of  which  at  his  birth  he  is  a  subject,  but  he  may  mam- 
times  change  his  domicil.  It  appears  to  me,  however,  that  each 
acquired  domicil  may  be  also  successively  abandoned  simplicitcr, 
and  that  thereupon  the  original  domicil  simpliciter  reverts. 

For  these  reasons,  my  Lords,  I  propose  to  your  Lordships  the 
affirmation  of  the  interlocutors  complained  of,  and  the  dismissal 
of  the  appeal  with  costs. 
Lord  Chelmsfords: — 

My  Lords,  at  the  opening  of  the  argument  of  this  appeal  for 
the  Respondent  his  learned  counsel  were  informed  that  your  Lord- 
ships were  of  opinion  that  the  domicil  of  Colonol  Udny  down  to 
the  year  1812  was  his  Scotch  domicil  of  origin,  and  that  the  case 
was  therefore  narrowed  down  to  the  questions  raised  by  the  Ap- 
pellant,— whether  that  domicil  had  been  superseded  by  the  acqui- 
sition of  another  domicil  in  England,  and  whether  such  after-ac- 
quired domicil  was  retained  at  the  time  of  the  birth  of  the  Re- 
spondent, and  continued  down  to  the  period  of  the  marriage  of  the 
Respondent's  parents  in  Scotland. 

In  considering  these  questions  it  will  be  necessary  to  ascertain 
the  nature  and  effect  of  a  domicil  of  origin ;  whether  it  is4ike  an 
after-acquired  domicil,  which  when  it  is  relinquished  can  be  re- 
acquired only  in  the  same  manner  in  which  it  was  originally  ac- 
quired, or  whether,  in  the  absence  of  any  other  domicil,  the  domi- 
cil of  origin  must  not  be  had  recourse  to  for  the  purpose  of  deter- 
mining any  question  which  may  arise  as  to  a  party's  personal 
rights  and  relations. 

Story,  in  his  Conflict  of  Laws  (sect.  48),  says,  "The  moment 
a  foreign  domicil  is  abandoned  the  native  domicil  is  re-acquired." 
Great  stress  was  laid  by  the  Appellant  in  his  reference  to  this  pas- 
sage upon  the  word  "re-acquired,"  which  is  obviously  an  inaccu- 
rate expression.  For,  as  was  pointed  out  in  the  course  of  the  ar- 
gument, a  domicil  of  origin  is  not  an  acquired  domicil,  but  one 
which  is  attributed  to  every  person  by  law.  The  meaning  of 
Story,  therefore,  clearly  is,  that  the  abandonment  of  a  subsequent- 


DOMICILS   OF    ORIGIN   AND   OF    CHOICE.  35 

ly-acquired  domicil  ipso  facto  restores  the  domicil  of  origin.  And 
this  doctrine  appears  to  be  founded  upon  principle,  if  not  upon 
direct  authority. 

It  is  undoubted  law  that  no  one  can  be  without  a  domicil.  If, 
then,  a  person  has  left  his  native  domicil  and  acquired  a  new  one, 
which  he  afterwards  abandons,  what  domicil  must  be  resorted  to 
to  determine  and  regulate  his  personal  status  and  rights?  Sir 
John  Leach,  V.  C,  in  Munroe  v.  Douglas  (5  Madd.  405),  held  that 
in  the  case  supposed  the  acquired  domicil  attaches  to  the  person 
till  the  complete  acquisition  of  a  subsequent  domicil,  and  (as  to 
this  point)  he  said  there  was  no  difference  in  principle  between  the 
original  domicil  and  an  acquired  domicil.  His  Honour's  words 
are :  "A  domicil  cannot  be  lost  by  mere  abandonment.  It  is  not  to 
be  defeated  animo  merely,  but  animo  et  facto,  and  necessarily  re- 
mains until  a  subsequent  domicil  be  acquired,  unless  the  party  die 
in  itinere  towards  an  intended  domicil."  There  is  an  apparent  in- 
consistency in  this  passage,  for  the  Vice-Chancellor  having  said 
that  a  domicil  necessarily  remains  until  a  subsequent  domicil  be 
acquired  animo  et  facto,  added,  "unless  the  party  die  in  itinere  to- 
wards an  intended  domicil ;"  that  is,  at  a  time  when  the  acquisition 
of  the  subsequent  domicil  is  incomplete  and  rests  in  intention  only. 

I  cannot  understand  upon  what  ground  it  can  be  alleged  that 
a  person  may  not  abandon  an  acquired  domicil  altogether  and 
carry  out  his  intention  fully  by  removing  animo  non  revertendi; 
and  why  such  abandonment  should  not  be  complete  until  another 
domicil  is  acquired  in  lieu  of  the  one  thus  relinquished. 

Sir  William  Scott,  in  the  case  of  The  Indian  Chief  (3  Rob. 
Adm.  20),  said:  "The  character  that  is  gained  by  residence  ceases 
by  residence.  It  is  an  adventitious  character  which  no  longer  ad- 
heres to  a  person  from  the  moment  he  puts  himself  in  motion  bona 
tide  to  quit  the  country  sine  animo  revertendi,"  and  he  mentions 
the  case  of  a  British-born  subject,  who  had  been  resident  in  Suri- 
nam and  St.  Eustatius,  and  had  left  those  settlements  with  an  in- 
tention of  returning  to  this  country,  but  had  got  no  farther  than 
Holland,  the  mother  country  of  those  settlements,  when  the  war 
broke  out ;  and  it  was  determined  by  the  Lords  of  Appeal  that  he 
was  in  itinere,  that  he  had  put  himself  in  motion,  and  was  in  pur- 
suit of  his  native  British  character. 


36  PRIVATE    INTERNATIONAL   LAW. 

Sir  John  Leach  seems  to  me  to  be  incorrect  also  in  saying  that 
in  the  case  of  the  abandonment  of  an  acquired  domicil  there  is 
no  difference  in  principle  between  the  acquisition  of  an  entirely 
new  domicil  and  the  revival  of  the  domicil  of  origin.  It  is  said 
by  Story,  in  sect.  47  of  his  Conflict  of  Laws,  that  "If  a  man  has 
acquired  a  new  domicil  different  from  that  of  his  birth,  and  he  re- 
moves from  it  with  an  intention  to  resume  his  native  domicil,  the 
latter  is  re-acquired  even  while  he  is  on  his  way  in  itinere;  for  it 
reverts  from  the  moment  the  other  is  given  up."  This  certainly 
cannot  be  predicated  of  a  person  journeying  towards  a  new  domi- 
cil which  it  is  his  intention  to  acquire. 

I  do  not  think  that  the  circumstances  mentioned  by  Story  in 
the  above  passage,  viz.,  that  the  person  has  removed  from  his  ac- 
quired domicil  with  an  intention  to  resume  his  native  domicil,  and 
that  he  is  in  itinere  for  the  purpose,  are  at  all  necessary  to  restore 
the  domicil  of  origin.  The  true  doctrine  appears  to  me  to  be  ex- 
pressed in  the  last  words  of  the  passage:  "It"  (the  domicil  of 
origin)  "reverts  from  the  moment  the  other  is  given  up." 

This  is  a  necessary  conclusion  if  it  be  true  that  an  acquired 
domicil  ceases  entirely  whenever  it  is  intentionally  abandoned,  and 
that  a  man  can  never  be  without  a  domicil.  The  domicil  of  origin 
always  remains,  as  it  were,  in  reserve,  to  be  resorted  to  in  case  no 
other  domicil  is  found  to  exist.  This  appears  to  me  to  be  the  true 
principle  upon  this  subject,  and  it  will  govern  my  opinion  upon  the 
present  appeal. 

Upon  the  question  whether  Colonel  Udny  ever  acquired  an 
English  domicil  which  superseded  his  domicil  of  origin,  there  can 
he  no  doubt  that  his  long  residence  in  Grosvenor  Street  for  the 
space  of  thirty-two  years  from  18 12  to  1844,  is  calculated  to  pro- 
duce a  strong  impression  in  favor  of  the  acquisition  of  such  a 
domicil.  Time  is  always  a  material  element  in  questions  of  domi- 
cil ;  and  if  there  is  nothing  to  counteract  its  effect,  it  may  be  con- 
clusive upon  the  subject.  But  in  a  competition  between  a  domicil 
of  origin  and  an  alleged  subsequently-acquired  domicil  there  may 
be  circumstances  to  shew  that  however  long  a  residence  may  have 
continued  no  intention  of  acquiring  a  domicil  may  have  existed  at 
any  one  moment  during  the  whole  of  the  continuance  of  such  resi- 


DOMICILS   OF    ORIGIN   AND   OF    CHOICE.  37 

dence.  The  question  in  such  a  case  is  not,  whether  there  is  evi- 
dence of  an  intention  to  retain  the  domicil  of  origin,  but  whether 
it  is  proved  that  there  was  an  intention  to  acquire  another  domicil. 
As  already  shewn,  the  domicil  of  origin  remains  till  a  new  one  is 
acquired  animo  et  facto.  Therefore,  a  wish  or  a  desire  expressed 
from  time  to  time  to  return  to  the  place  of  the  first  domicil,  or  any 
looking  to  it  as  the  ultimate  home,  although  wholly  insufficient  for 
the  retention  of  the  domicil  of  origin,  may  yet  amount  to  material 
evidence  to  rebut  the  presumption  of  an  intention  to  acquire  a  new 
domicil  arising  from  length  of  residence  elsewhere.  In  this  view 
it  would  be  a  fair  answer  to  the  question,  Did  Colonel  Udny  intend 
to  make  England  his  permanent  home?  to  point  to  all  his  acts  and 
declarations  with  respect  to  Scotland  and  his  estates  there,  to  the 
offices  which  he  held,  to  the  institutions  to  which  he  belonged,  and 
to  his  subscriptions  to  local  objects,  shewing,  that  though  his  pur- 
suits drew  him  to  England  and  kept  him  there,  and  his  circum- 
stances prevented  his  making  Udny  Castle  fit  for  his  residence,  he 
always  entertained  a  hope,  if  not  an  expectation,  that  a  change  in 
his  fortunes  might  eventually  enable  him  to  appear  in  his  country 
of  origin,  and  to  assume  his  proper  position  there  as  a  Scotch  pro- 
prietoi . 

If  the  residence  in  England  began  under  circumstances  which 
indicate  no  intention  that  it  was  to  be  permanent,  when  did  it  as- 
sume the  character  of  permanence  by  proof  that  the  Colonel  had 
intentionally  given  up  his  Scotch  domicil  and  adopted  a  different 
one?  It  appears  to  me  upon  this  question  of  fact,  that  through- 
out the  whole  of  the  Colonel's  residence  in  London  there  was  al- 
ways absent  the  intention  to  make  it  his  permanent  home  which  is 
essential  to  constitute  a  domicil;  residence  alone,  however  long, 
being  immaterial  unless  coupled  with  such  intention.  But  even  if 
it  should  be  considered  that  Colonel  Udny's  residence  in  England, 
though  not  originally  intended  to  be  his  permanent  home,  after  a 
certain  length  of  time  ripened  into  a  domicil,  yet  in  1844  he  gave 
up  the  house  in  Grosvenor  Street  and  returned  to  Boulogne,  where 
he  remained  for  nine  years  without  any  apparent  intention  of 
again  taking  up  his  residence  in  England.  This  abandonment  of 
the  English  residence,  both  in  will  and  deed,  although  accompa- 


38  PRIVATE    INTERNATIONAL   LAW. 

nied  with  no  immediate  intention  of  resuming  the  Scotch  domicil, 
put  an  end  at  once  to  the  English  domicil,  and  the  domicil  of  origin 
ipso  facto  became  the  domicil  by  which  the  personal  rights  of  Colo- 
nel Udny  were  thenceforth  to  be  regulated. 

This  makes  it  unnecessary  to  consider  what  would  have  been 
the  condition  of  the  Respondent  if  his  birth  had  taken  place  in 
England  before  the  resumption  of  the  Scotch  domicil  by  Colonel 
Udny,  and  the  subsequent  marriage  of  his  parents  in  Scotland 
after  that  domicil  had  been  resumed.  Because  the  domicil  being 
Scotch,  the  place  of  the  birth  of  the  Respondent  is  wholly  imma- 
terial, and  the  case  is  completely  governed  by  the  authority  of  the 
cases  of  Dalhousie  v.  McDonall  (7  CI.  &  F.  817)  and  Munro  v. 
Munro  (Ibid.  842),  in  each  of  which  the  birth  of  the  illegitimate 
child,  and  also  the  subsequent  marriage  of  the  parents,  took  place 
in  England,  but  the  domicil  being  Scotch  it  was  held  that  neither 
the  place  of  the  marriage  nor  the  place  of  the  birth  affected  the 
status  of  the  child. 

The  existence  of  the  Scotch  domicil  renders  it  also  unneces- 
sary to  consider  .whether  the  parents  of  the  Respondent  went  to 
Scotland  for  the  purpose  merely  of  legitimating  the  Respondent 
by  their  marriage  there,  and  deprives  the  case  of  Rose  v.  Ross 
(4  Wils.  &  Shaw,  289),  which  was  insisted  upon  by  the  Appellant, 
of  all  application.  For  in  that  case,  as  stated  by  the  Lord  Chancel- 
lor, "the  parties  were  domiciled  in  England,  the  child  was  born  in 
England,  the  parties  went  to  Scotland  for  the  purpose  expressly  01 
being  married,  and  having  been  married  they  returned  to  England 
to  the  place  of  their  former  domicil." 

I  agree  with  my  noble  and  learned  friend  that  the  interlocu- 
tors appealed  from  ought  to  be  affirmed. 
Lord  West  bury  : — 

The  law  of  England,  and  of  almost  all  civilized  countries,  as- 
cribes to  each  individual  at  his  birth  two  distinct  legal  states  or 
conditions  ;  one  by  virtue  of  which  he  becomes  the  subject  of  some 
particular  country,  binding  him  by  the  tie  of  natural  allegiance, 
and  which  may  be  called  his  political  status;  another,  by  virtue  of 
which  he  has  ascribed  to  him  the  character  of  a  citizen  of  some 
particular  country,  and  as  such  is  possessed  of  certain  municipal 


DOMICILS   OF    ORIGIN   AND   OF    CHOICE.  39 

rights,  and  subject  to  certain  obligations,  which  latter  character  is 
the  civil  status  or  condition  of  the  individual,  and  may  be  quite 
different  from  his  political  status.  The  political  status  may  de- 
pend on  different  laws  in  different  countries ;  whereas  the  civil 
status  is  governed  universally  by  one  single  principle,  namely,  that 
of  domicil,  which  is  the  criterion  established  by  law  for  the  pur- 
pose of  determining  civil  status.  For  it  is  on  this  basis  that  the 
personal  rights  of  the  party,  that  is  to  say,  the  law  which  deter- 
mines his  majority  or  minority,  his  marriage,  succession,  testacy, 
or  intestacy,  must  depend.  International  law  depends  on  rules 
which,  being  in  great  measure  derived  from  the  Roman  law,  are 
common  to  the  jurisprudence  of  all  civilized  nations.  It  is  a  set- 
tled principle  that  no  man  shall  be  without  a  domicil,  and  to  secure 
this  result  the  law  attributes  to  every  individual  as  soon  as  he  is 
born  the  domicil  of  his  father,  if  the  child  be  legitimate,  and  the 
domicil  of  the  mother  if  illegitimate.  This  has  been  called  the 
domicil  of  origin,  and  is  involuntary.  Other  domicils,  including 
domicil  by  operation  of  law,  as  on  marriage,  are  domicils  of  choice. 
For  as  soon  as  an  individual  is  sui  juris  it  is  competent  to  him  to 
elect  and  assume  another  domicil,  the  continuance  of  which 
depends  upon  his  will  and  act.  When  another  domicil  is  put  on, 
the  domicil  of  origin  is  for  that  purpose  relinquished,  and  remains 
in  abeyance  during  the  continuance  of  the  domicil  of  choice ;  but 
as  the  domicil  of  origin  is  the  creature  of  law,  and  independent  of 
the  will  of  the  party,  it  would  be  inconsistent  with  the  principles 
on  which  it  is  by  law  created  and  ascribed,  to  suppose  that  it  is 
capable  of  being  by  the  act  of  the  party  entirely  obliterated  and 
extinguished.  It  revives  and  exists  whenever  there  is  no  other 
domicil,  and  it  does  not  require  to  be  regained  or  reconstituted 
ai  imo  et  facto,  in  the  manner  which  is  necessary  for  the  acquisi- 
tion of  a  domicil  of  choice. 

Domicil  of  choice  is  a  conclusion  or  inference  which  the  law 
derives  from  the  fact  of  a  man  fixing  voluntarilv  his  sole  or  chfef 
residence  in  a  particular  place,  with  an  intention  of  continuing  to 
reside  there  for  an  unlimited  time.  This  is  a  description  of  the 
circumstances  which  create  or  constitute  a  domicil,  and  not  a  defi- 
nition of  the  term.     There  must  be  a  residence  freely  chosen,  and 


40  PRIVATE    INTERNATIONAL   LAW. 

not  prescribed  or  dictated  by  any  external  necessity,  such  as  the 
duties  of  office,  the  demands  of  creditors,  or  the  relief  from  illness ; 
and  it  must  be  residence  fixed  not  for  a  limited  period  or  particular 
purpose,  but  general  and  indefinite  in  its  future  contemplation.  It 
is  true  that  residence  originally  temporary,  or  intended  for  a  lim- 
ited period,  may  afterwards  become  general  and  unlimited,  and  in 
such  a  case  so  soon  as  the-change  of  purpose,  or  animus  manendi, 
can  be  inferred  the  fact  of  domicil  is  established. 

The  domicil  of  origin  may  be  extinguished  by  act  of  law,  as, 
for  example,  by  sentence  of  death  or  exile  for  life,  which  puts  an 
end  to  the  status  chilis  of  the  criminal ;  but  it  cannot  be  destroyed 
by  the  will  and  act  of  the  party. 

Domicil  of  choice,  as  it  is  gained  animo  et  facto,  so  it  may  be 
put  an  end  to  in  the  same  manner.  Expressions  are  found  in  some 
books,  and  in  one  or  two  cases,  that  the  first  or  existing  domicil 
remains  until  another  is  acquired.  This  is  true  if  applied  to  the 
domicil  of  origin,  but  cannot  be  true  if  such  general  words  were 
intended  (which  is  not  probable)  to  convey  the  conclusion  that  a 
domicil  of  choice,  though  unequivocally  relinquished  and  aban- 
doned, clings,  in  despite  of  his  will  and  acts,  to  the  party,  until 
another  domicil  has  animo  et  facto  been  acquired.  The  cases  to 
which  I  have  referred  are,  in  my  opinion,  met  and  controlled  bv 
other  decisions.  A  natural-born  Englishman  may,  if  he  domiciles 
himself  in  Holland,  acquire  and  have  the  status  civilis  of  a  Dutch- 
man, which  is  of  course  ascribed  to  him  in  respect  of  his  settled 
abode  in  the  land,  but  if  he  breaks  up  his  establishment,  sells  his 
house  and  furniture,  discharges  his  servants,  and  quits  Holland, 
declaring  that  he  will  never  return  to  it  again,  and  taking  with 
him  his  wife  and  children,  for  the  purpose  of  traveling  in  France 
or  Italy  in  search  of  another  place  of  residence,  is  it  meant  to  be 
said  that  he  carries  his  Dutch  domicil,  that  is,  his  Dutch  citizen- 
ship, at  his  back,  and  that  it  clings  to  him  pertinaciously  until  he 
has  finally  set  up  his  tabernacle  in  another  country  ?  Such  a  con- 
clusion would  be  absurd  ;  but  there  is  no  absurdity  and,  on  the  con- 
trary, much  reason,  in  holding  that  an  acquired  domicil  may  be 
effectually  abandoned  by  unequivocal  intention  and  act ;  and  that 
when  it  is  so  determined  the  domicil  of  origin  revives  until  a  new 


DOMICILS   OF    ORIGIN   AND   OF    CHOICE.  41 

domicil  of  choice  be  acquired.  According  to  the  dicta  in  the  books 
and  cases  referred  to,  if  the  Englishman  whose  case  we  have  been 
supposing  lived  for  twenty  years  after  he  had  finnally  quitted 
Holland ,  without  acquiring  a  new  domicil,  and  afterwards  died  in- 
testate, his  personal  estate  would  be  administered  according  to  the 
law  of  Holland,  and  not  according  to  that  of  his  native  country. 
This  is  an  irrational  consequence  of  the  supposed  rule.  But  when 
a  proposition  supposed  to  be  authorized  by  one  or  more  decisions 
involves  absurd  results,  there  is  great  reason  for  believing  that  no 
such  rule  was  intended  to  be  laid  down. 

In  Mr.  Justice  Story's  Conflict  of  Laws  (the  last  edition)  it  is 
stated  that  "the  moment  the  foreign  domicil  (that  is  the  domicil 
of  choice)  is  abandoned,  the  native  domicil  or  domicil  of  origin  is 
re-acquired." 

And  such  appears  to  be  the  just  conclusion  from  several  de- 
cided cases,  as  well  as  from  the  principles  of  the  law  of  domicil. 

In  adverting  to  Mr.  Justice  Story's  work,  I  am  obliged  to  dis- 
sent from  a  conclusion  stated  in  the  last  edition  of  that  useful 
book,  and  which  is  thus  expressed,  '"The  result  of  the  more  recent 
English  cases  seems  to  be,  that  for  a  change  of  national  domicil 
there  must  be  a  definite  and  effectual  change  of  nationality."  In 
support  of  this  proposition  the  editor  refers  to  some  words  which 
appear  to  have  fallen  from  a  noble  and  learned  lord  in  addressing 
this  House  in  the  case  of  Moorhouse  v.  Lord  (10  H.  L.  C.  2J2) 
when  in  speaking  of  the  acquisition  of  a  French  domicil,  Lord 
Kingsdozcn  says,  "A  man  must  intend  to  become  a  Frenchman  in- 
stead of  an  Englishman." 

These  words  are  likely  to  mislead,  if  they  were  intended  to 
signify  that  for  a  change  of  domicil  there  must  be  a  change  of  na- 
tionality, that  is,  of  natural  allegiance. 

That  would  be  to  confound  the  political  and  civil  states  of  an 
individual,  and  to  destroy  the  difference  between  patria  and  doini- 
cilium. 

The  application  of  these  general  rules  to  the  circumstances  of 
the  present  case  is  very  simple.  I  concur  with  my  noble  and 
learned  friend  that  the  father  of  Colonel  Udny,  the  consul  at  Leg- 
horn, and  afterwards  at  Venice,  and  again  at  Leghorn,  did  not  by 


42  PRIVATE    INTERNATIONAL   LAW. 

his  residence  there  in  that  capacity  lose  his  Scotch  domicil.  Colo- 
nel Udny  was,  therefore,  a  Scotchman  by  birth.  But  I  am  cer- 
tainly inclined  to  think  that  when  Colonel  Udny  married,  and  (to 
use  the  ordinary  phrase)  settled  in  life  and  took  a  long  lease  of  a 
house  in  Grosvenor  Street,  and  made  that  a  place  of  abode  of  him- 
self and  his  wife  and  children,  becoming,  in  point  of  fact,  subject 
to  the  municipal  duties  of  a  resident  in  that  locality ;  and  when  he 
had  remained  there  for  a  period,  I  think,  of  thirty-two  years,  there 
being  no  obstacle  in  point  of  fortune,  occupation,  or  duty,  to  his 
going  to  reside  in  his  native  country ;  under  these  circumstances,  I 
should  come  to  the  conclusion,  if  it  were  necessary  to  decide  the 
point,  that  Colonel  Udny  deliberately  chose  and  acquired  an  Eng- 
lish domicil.  But  if  he  did  so,  he  as  certainly  relinquished  that 
English  domicil  in  the  most  effectual  way  by  selling  or  surrender- 
ing the  lease  of  his  house,  selling  his  furniture,  discharging  his 
servants,  and  leaving  London  in  a  manner  which  removes  all 
doubt  of  his  ever  intending  to  return  there  for  the  purpose  of.resi- 
dence.  If,  therefore,  he  acquired  an  English  domicil  he  aban- 
doned it  absolutely  ultimo  et  facto.  Its  acquisition  being  a  thing 
of  choice,  it  was  equally  put  an  end  to  by  choice.  He  lost  it  the 
moment  he  set  foot  on  the  steamer  to  go  to  Boulogne,  and  at  the 
same  time  his  domicil  or  origin  revived.  The  rest  is  plain.  The 
marriage  and  the  consequences  of  that  marriage  must  be  deter- 
mined by  the  law  of  Scotland,  the  country  of  his  domicil. 

Lord  Colonsay  : — 

I  regard  this  case  as  one  of  very  considerable  importance,  in- 
asmuch as  it  has  afforded  an  opportunity  for  bringing  out,  more 
clearly  than  has  been  done  in  any  of  the  former  cases,  the  radical 
distinction  between  domicil  of  origin  and  domicil  of  choice.  The 
principles  of  that  distinction  and  the  facts  have  been  so  clearly  put 
before  the  House  that  I  need  do  no  more  than  express  my  concur- 
rence. 

Judgment: — Ordered  and  Adjudged,  that  the  said  interlocu- 
tor of  the  Lords  of  Session  in  Scotland,  of  the  Second  Division,  of 
the  14th  of  December,  1866,  complained  of  in  the  said  appeal,  be 
varied  by  substituting  for  the  words  "that  he  never  lost  his  said 
domicil  of  origin"  these  words,  "and  that  if  such  domicil  of  origin 


DOMICILS    OF   ORIGIN    AND    OF    CHOICE.  43 

was  ever  changed,  yet  by  leaving  England  in  1844  his  domicil  of 
origin  reverted ;"  and  that,  with  this  variation,  the  said  interlocu- 
tor be,  and  the  same  is,  hereby  affirmed,  and  that  the  said  petition 
and  appeal  be,  and  the  same  is,  hereby  dismissed  this  House. 
Solicitors  for  the  Appellant :  Cover  dale,  Lee,  Bristozv  &  Withers. 
Solicitors  for  the  Respondent:  White,  Broughton,  &  White. 


IN  RE  CAPDEVIELLE,  2  H.  &  C.  985,  (1864). 

The  testator,  Domingo  Capdevielle,  was  the  son  of  French 
parents,  and  was  born  towards  the  end  of  the  last  century  at  Mon- 
tory  in  France.  In  the  year  1807  he  went  to  Cadiz  in  Spain  where 
he  v\as  clerk  to  a  merchant.  He  afterwards  went  to  Gibraltar. 
In  the  year  1830  he  came  to  England  and  carried  on  business  as 
commission  agent  at  Manchester  until  his  death  in  1859.  During 
all  that  time  he  resided  in  lodgings  for  which  he  paid  a  weekly 
rent,  and  further  weekly  sum  for  his  board.  In  1835  he  visited 
Montory,  and  again  in  1846,  when  he  passed  a  solemn  act  before  a 
notary  for  the  preservation  of  his  co-hereditary  rights  of  succes- 
sion to  a  property  there.  He  also  then  purchased  a  house  and 
land  at  Montory,  and  desired  that  some  apartments  in  the  house 
should  be  kept  ready  for  his  return.  He  frequently  expressed  an 
intention  to  return  to  his  native  country.  He  devised  all  his  real 
and  personal  property  to  his  nephew  in  England.  He  had  no  real 
property  in  England,  but  a  large  amount  of  personal  property  con- 
sisting of  cash  and  railway  shares. 

Martin,  B. — The  judgment  which  I  am  about  to  deliver  is 
that  of  my  brother  Channell  and  myself. 

There  are  two  questions  in  this  case.  First,  was  the  testator 
Domingo  Capdevielle  domiciled  in  England?  This  is  a  question 
of  fact  to  be  determined  upon  affidavits  which  have  been  produced 
by  the  executor,  and  which  I  think  we  are  bound  to  consider  as 
substantially  true ;  vve  have  no  reason  to  suppose  they  are  other- 
wise. They  state  that  the  testator  was  born  in  France,  and  left 
that  country  prior  to  the  year  1807  or  1808  to  avoid  the  conscrip 
tion.  He  first  went  to  Spain  ;  from  thence  to  Gibraltar,  and  in 
1830  came  to  England  and  commenced  the  business  of  a  commis- 


44  PRIVATE    INTERNATIONAL   LAW. 

sion  agent  at  Manchester,  and  continued  it  until  the  6th  January, 
1859,  when  he  died.  He  was  twice  in  France  during  that  period 
and  purchased  some  real  property  there.  I  think  it  is  the  true  and 
fair  inference  from  the  affidavits  that  during  the  whole  time  his 
mind  and  intention  was  to  return  to  France  and  die  there,  although 
he  never  determined  or  fixed  upon  any  period  when  his  return 
should  take  place,  and  that  he  was  living  in  Manchester  with  the 
intention  of  remaining  there  for  an  indefinite  period ;  but  during 
all  the  time  he  had  the  hope  and  expectation  and  intention  of  re- 
turning to  France  and  there  ending  his  life ;  and  that  he  always 
deemed  and  considered  himself  to  be  a  Frenchman  and  not  an 
Englishman. 

The  question  whether  he  was  domiciled  in  England  depends 
upon  what  is  the  true  definition  of  domicile  in  regard  to  testa- 
mentary acts.  In  Story's  Conflict  of  Laws,  c.  3,  sec.  46,  it  is  said 
that  "if  a  person  has  actually  removed  to  another  place  with  an 
intention  of  remaining  there  for  an  indefinite  time,  and  as  a  place 
of  fixed  present  domicile,  it  is  to  be  deemed  his  place  of  domicile 
notwithstanding  he  may  entertain  a  floating  intention  to  return  (to 
his  native  country)  at  some  future  period."  If  this  be  the  true 
definition  of  domicile  the  testator  was  domiciled  in  England,  for 
he  had  removed  to  Manchester  and  lived  there  for  twenty-nine 
years,  his  intention  wa?  to  remain  there  for  an  indefinite  time  as 
his  fixed  permanent  domicile;  and  although  I  believe  he  had  al- 
ways what  may  be  called  a  floating  intention  to  return  to  France 
at  a  future  period,  yet  this,  according  to  the  above  definition, 
would  not  prevent  the  English  domicile.  There  are  also  two  other 
definitions  of  domicile,  one  in  the  same  work,  c.  3,  s.43,  viz.,  "that 
place  is  properly  the  domicile  of  a  person  in  which  his  habitation  is 
fixed,  without  any  present  intention  of  removing  therefrom ;"  the 
other  is  in  Dr.  Phillimore's  Book  on  Domicile,  c.  c.  2,  s.  15,  p.  13, 
viz.,  "a  residence  at  a  particular  place,  accompanied  with  positive  or 
presumptive  proof  of  an  intention  to  remain  there  for  an  unlimited 
time."  If  these  be  correct  the  domicile  of  the  testator  was  English. 
But  on  the  other  hand  there  is  a  definition  of  domicile  by  Lord 
Wensleydale,  in  Aikman  z/.Aikman,  3  Macq. 877,  which,  if  correct, 
seems  to  me   to  establish  that  the    domicile  of  the    testator  was 


DOMICILS   OF    ORIGIN   AND   OF    CHOICE.  45 

French.  It  is  this : — "Every  man's  domicile  of  origin  must  be  pre- 
sumed to  continue  until  he  has  acquired  another  sole  domicile  by 
actual  residence  with  the  intention  of  abandoning  his  domicile  of 
origin.    This  change  must  be  animo  et  facto,  and  the  burthen  of 
proof  unquestionably  lies  upon  the  party  who  asserts  the  change." 
Now,  if  this  be  the  correct  definition  of  domicile  the  testator's  domi- 
cile was  French,  for  I  think  the  undoubted  inference  from  the  affi- 
davits is  that  he  never  had  the  intention  of  abandoning  his  French 
domicile ;  on  the  contrary  he  always  desired  to  retain  it ;  and  it  may 
be  predicated  with  absolute  certainty  that  the  Attorney-General 
did  not  establish  the  contrary.     But  it  was  said  that  Lord  Wen- 
sleydale  was  not  to  be  understood  as    intending  what  his  words 
seem  to  express ;  but  it  is  to  me  clear  from  the  case  of  Moorehouse 
V.  Lord,  10  H.  L.  272,  decided  last  year,  that  Lord  Wensleydale 
was  understood  by  the  noble   and  learned   lords    who    delivered 
judgment  there  in  the  sense  which  his  words  naturally  mean.    The 
three   lords   who   delivered   judgment,    Lord    Cran worth,    Lord 
Chelmsford,  and  Lord    Kingsdown,  all   go  into  the   question  of 
domicile.    Lord  Cranworth  clearly  intimates  that  the  old  view  as 
to  domicile  was  not  correct,  and  that  modern  improved  views  ex- 
isted.    He  says  (10  Ff.  L.  283)  in  order  to  acquire  a  new  domi- 
cile, &c,  a  man  must  intend  "quatenus  in  illo  exuere  patriam."    It 
is  not  enough  if  you  take  a  house  in  another  place,  and  that  it  is 
tolerably  certain  thai,  you  had  better  remain  there  all  the  days  of 
your  life.     That  does  not  signify.     You  do  not  lose  your  domicile 
of  origin  merely  because  you  go  to  some  other  place  that  suits  you 
better,  unless  you  mean  to  cease  to  be  a  Scotchman  and  become  an 
Englishman,  or  a  Frenchman,  or  a  German.     In  that  case  if  you 
give  up  everything  you  left  behind  you  and  establish  yourself  else- 
where, you  may  change  your  domicile.     It  is  therefore  clear  to 
my  mind  that  Lord  Cranworth  entertained  the  view  as  to  domi- 
cile which  the  words  of  Lord  Wensleydale  naturally  and  in  their 
ordinary  meaning  import.     Lord  Chelmsford  is,  if  possible,  still 
more  clear.     After  stating  that  two  definitions  of  domicile  which 
had  been  mentioned  were  in  his  opinion  liable  to  exception,  he  pro- 
ceeds :  (Id.  285) — "The  present  intention  of  making  a  place  a  per- 
son's permanent  home  can  exist  only  where  he  has  no  other  idea 


46  PRIVATE    INTERNATIONAL    LAW. 

than  to  continue  there,  without  looking  forward  to  any  event,  cer- 
tain or  uncertain,  which  might  induce  him  to  change  his  residence. 
If  he  has  in  his  contemplation  some  event  upon  the  happening  of 
which  his  residence  will  cease,  it  is  not  correct  to  call  this  even  a 
present  intention  of  making  it  a  permanent  home.  It  is  rather  a 
present  intention  of  making  it  a  temporary  home  though  for  a 
period  indefinite  and  contingent.  And  even  if  such  residence 
should  continue  for  years,  the  same  intention  to  terminate  it  being 
continually  present  to  the  mind,  there  is  no  moment  of  time  at 
which  it  can  be  predicated  that  there  has  been  the  deliberate  choice 
of  a  permanent  home.  In  a  question  of  change  of  domicile  the 
attention  must  not  be  too  closely  confined  to  the  nature  and  char- 
acter of  the  residence  by  which  the  new  domicile  is  supposed  to 
have  been  acquired.  It  may  possibly  be  of  such  a  description  as  to 
show  an  intention  to  abandon  the  former  domicile ;  but  that  inten- 
tion must  be  clearly  and  unequivocally  proved."  Ke  then  clearly 
adopts  Lord  Wensley dale's  definition  as  I  understand  it,  and  states 
it  at  length.  Lord  Kingsdown  expressed  his  concurrence  with 
the  other  judgments  and  added,  (Id.  291),  "Upon  the  question  of 
domicile  I  would  only  wish  to  say  that  I  apprehend  that  change 
of  residence  alone,  however  long  and  continued,  does  not  affect  a 
change  of  domicile  as  regulating  the  testamentary  acts  of  the  indi- 
vidual. It  may  be,  and  it  is,  a  necessary  ingredient;  it  may  be, 
."»nd  it  is,  strong  evidence  of  an  intention  to  change  the  domicile, 
but  unless,  in  addition  to  residence,  there  is  intention  to  change 
the  domicile,  in  my  opinion  no  change  of  domicile  is  made."  I 
adopt  the  definition  of  Lord  Wensleydale.  I  think  it  is  approved 
of  by  the  three  noble  and  learned  lords  whose  opinions  I  have 
quoted ;  and  as  I  think  there  is  no  evidence  of  intention  of  the 
testator  to  change  his  domicile,  in  my  judgment  the  domicile  of  the 
♦  estator  was  French. 

The  other  point  is,  whether,  assuming  the  domicile  to  be 
French,  succession  duty  is  payable.  The  argument  on  behalf  of 
the  executor  is  very  clear  and  apparently  cogent.  The  duty  is 
claimed  in  respect  of  a  legacy  of  personalty,  the  testator  is  to  be 
taken  as  having  a  French  domicile.  The  rule  of  law  is,  that  "mo- 
bilia  er  personalia  sequenter  personam."     It  is  said  therefore  to  be 


DOMICILS   OF    ORIGIN    AND   OF    CHOICE.  47 

the  same  as  if  the  will  had  been  made  by  a  Frenchman  who  had 
never  been  out  of  France  in  his  life,  and  all  his  personalty  had 
been  locally  situated  there.  The  House  of  Lords,  in  Thompson 
V.  The  Advocate-General,  12  CI.  &  F.  1,  acted  upon  this  principle, 
and  have  conclusively  decided  that  legacy  duty  is  not  payable  in 
respect  of  the  present  bequest ;  and  there  is  certainly  no  expression 
to  be  found  in  the  Succession  Duty  Act  to  show  an  intention  to 
alter  the  law.  The  House  of  Lords  there  put  a  limitation  upon 
the  words  ''every  legacy  given  by  any  will  of  any  person,"  and  we 
are  urged  to  put  the  same  limitation  upon  the  words  "every  dis- 
position" in  the  2d  section  of  the  Succession  Duty  Act. 

On  the  other  hand  the  case  of  Wallop's  Trust,  decided  by  the 
Lords  Justices  on  the  nth  March  in  the  present  year,  was  cited 
by  the  Attorney-General.  It  was  the  case  of  an  appointment  by 
will  of  personalty  by  the  donee  of  a  power  domiciled  in  Jersey,  the 
power  being  created  by  the  will  of  a  testator  domiciled  in  Eng- 
land. The  Lords  Justices  held  succession  duty  to  be  payable.  It 
was  said  that  this  case  was  not  in  point  inasmuch  as  the  legacy 
was  under  a  power  and  took  effect  by  virtue  of  the  will  of  a  testa- 
tor who  was  domiciled  in  England.  Lord  Justice  Turner,  how- 
ever, stated  in  the  most  express  and  direct  terms  that  this  was  not 
the  ground  of  his  judgment,  and  that  in  his  opinion  the  legatees 
of  persons  domiciled  out  of  Great  Britain,  and  the  appointees  of 
donees  of  powers  so  domiciled,  were  intended  to  be  and  were  sub- 
ject to  succession  duty  by  the  second  section  of  the  Act. 

This  case  is  in  substance  in  point,  and  I  think  we  ought  to  be 
bound  by  it ;  and  if  it  be  wrong  it  ought  to  be  set  right  by  a  Court 
of  appeal,  and  not  by  one  of  co-ordinate  jurisdiction. 

Bramwell,  B. — I  agree  that  the  Crown  is  entitled  to  duty. 
With  respect  to  the  first  point,  I  cannot  say  that  I  dissent  from  the 
reasons  given  by  my  Brothers  Martin  and  Channell  for  their 
judgment,  because  I  am  unable  to  form  an  opinion  on  the  subject 
to  which  I  can  attach  any  value,  and  therefore  I  am  disposed  to 
subscribe  to  that  expressed  by  Judges  whose  opinions  I  so  much 
respect.     I  wish,  however,  to  state  the  reason  of  my  difficulty. 

Here  a  question  arises  on  an  English  Act  of  Parliament, 
whether  certain  personal  property  is  liable  to  legacy  duty ;  and 


48  PRIVATE    INTERNATIONAL   LAW. 

that  depends  on  whether  or  no  the  testator  was  domiciled  in  Eng- 
land. I  concur  with  my  brother  Martin  in  his  appreciation  of  the 
facts  with  reference  to  the  question  involved.  The  word  "domi- 
cile" is  not  to  be  found  in  the  statute,  but  if  by  authoritative  deci- 
sion its  operation  is  limited  to  cases  where  a  testator  was  domiciled 
in  England,  no  doubt  our  duty  is  simply  to  ascertain  whether  or  no 
there  has  been  an  English  domicile.  To  my  mind  that  must  al- 
ways be  a  matter  of  great  uncertainty,  on  account  of  the  extreme 
difficulty  in  saying  what  constitutes  an  English  domicile.  Every 
definition,  except  one,  of  the  word  "domicile"  would  comprehend 
this  case,  and  render  the  testator  domiciled  in  England,  and  all  the 
authorities  relating  to  Anglo-Indian  domicile  point  in  the  same 
direction.  The  only  authority  to  the  contrary  is  the  decision  of 
the  House  of  Lords  in  Moorehouse  v.  Lord,  10  H.  L.  272.  Xj 
doubt  the  judgments  pronounced  by  the  noble  and  learned  lords 
in  that  case,  and  the  expressions  of  Lord  Wensleydale  in  Aikman 
v.  Aikman,  3  Macq.  877,  tend  to  show  that  the  testator  had  not  ac- 
quired an  English  domicile,  because,  according  to  my  appreciation 
of  the  facts,  he  always  had  the  intention,  hope,  and  expectation  of 
returning  to  France,  and  perhaps  of  there  ending  his  days.  If  I 
felt  satisfied  that  this  case  was  concluded  by  the  decision  of  the 
House  of  Lords  in  Moorehouse  v.  Lord,  of  course  I  should  trouble 
myself  with  no  further  reasoning  about  it,  but  follow,  as  I  am 
bound  to  do,  that  decision.  But  in  my  opinion  there  are  two  diffi- 
culties in  reference  to  it.  One  is  that  it  is  inconsistent  with  the 
former  cases  respecting  Anglo-Indian  domicile,  and  yet  it  does 
not  expressly  overrule  them,  or  even  notice  them.  The  other  is 
that  the  expressions  used  appear  to  me,  with  great  deference,  far 
too  extensive.  To  say  that  a  man  cannot  abandon  his  domicile  of 
origin  without  doing  all  that  in  him  lies  to  divest  himself  of  his 
country,  is  a  proposition  which,  with  great  submission,  I  think 
cannot  be  maintained.  In  the  ordinary  case  of  an  Irish  or  Eng- 
lish labourer  emigrating  to  the  United  States  of  America,  without 
any  hope  or  intention  of  ever  returning,  but  not  naturalizing  him- 
self for  fear  of  being  subject  to  conscription ;  ready  to  claim  the 
protection  of  the  British  Ambassador  to  prevent  his  being  made  a 
conscript,  but  having  no  desire  or  intention  whatever  to  remain  a 


DOMICILS   OF   ORIGIN   AND   OF    CHOICE.  49 

British  subject;  I  think  that,  if  he  died  in  America,  it  could 
scarcely  be  argued,  that  America  was  not  his  place  of  domicile, 
although  he  bad  not  done  all  that  in  him  lay  to  abandon  his  native 
country.  Therefore,  assuming  those  noble  and  learned  lords  in- 
tended to  overrule  previous  cases,  I  have  great  difficulty  in  sup- 
posing that  they  intended  everything  which  would  be  compre- 
hended within  the  very  extensive  expressions  they  used. 

That  being  so,  I  cannot  help  referring  to  the  Act  of  Parlia- 
ment ;  and,  as  I  before  observed,  the  word  "domicile"  is  not  found 
in  it.  The  Act  imposes  a  duty  on  every  legacy,  but  the  general 
words  of  the  Act  must  be  restricted  to  that  which  is  properly  the 
subject  of  a  British  legacy,  that  is  to  say,  British  personal  prop- 
erty, and  cannot  apply  to  a  foreigner,  or  an  Englishman  in  the 
position  of  a  foreigner,  that  is,  domiciled  abroad.  I  am  content 
to  suppose  the  rule  of  law  reasonable,  that  personal  property,  hav- 
ing no  situs,  follows  the  domicile  of  its  owner.  But  here  is  the  case 
of  a  Frenchman  who  left  his  native  country  more  than  half  a  cen- 
tury ago,  and  who  lived  for  nearly  thirty  years  in  England,  where 
he  attained  an  old  age,  whose  place  of  business  was  in  England, 
who  made  his  property  in  England,  and  invested  the  greater  part 
of  it  there,  who  made  a  will  in  England  which  required  probate 
in  a  Court  in  England,  and  who  left  property  to  a  legatee  residing 
there.  Then  why  should  not  that  property  be  subject  to  legacy 
duty,  the  legatee  being  in  England  and  taking  the  property  here 
under  English  authority  ?  I  own  I  cannot  see  why  it  should  not ; 
and  acting  on  my  own  unassisted  judgment  I  should  have  been 
unable  to  come  to  the  conclusion  that  the  property  was  not  subject 
to  legacy  duty  because  the  testator  was  a  Frenchman,  and  ought 
to  be  treated  in  the  same  way  as  a  person  who  had  never  been  in 
England  and  had  no  property  here.  I  have  considerable  difficulty, 
either  looking  at  the  reason  of  the  thing,  or  in  the  belief  that  the 
Anglo-Indian  cases  are  overruled;  whilst,  on  the  other  hand,  I 
have  a  difficulty  the  other  way,  on  account  of  the  extensive  ex- 
pressions used  by  the  noble  and  learned  lords  in  Moorehouse  v. 
Lord. 

But  then  it  is  said  that  if  the  property  is  not  liable  to  legacy 
duty  it  is  liable  to  succession  duty;  and  cases  have  been  cited  in 


50  PRIVATE    INTERNATIONAL   LAW. 

support  of  that  position.  Although  I  have  great  faith  in,  and 
respect  for,  the  authority  of  the  learned  Lord  Justice  who  pro- 
nounced an  opinion  in  accordance  with  that  view  (which  was  cer- 
tainly not  heartily  concurred  in  by  his  learned  coadjutor),  I  con- 
fess I  have  great  difficulty  in  following  that  authority,  for  this 
reason,  that  whatever  arguments  can  be  used  for  the  purpose  of 
showing  that  legacy  duty  is  restricted  to  persons  and  property  the 
subject  of  British  legislation,  so  as  to  exonerate  persons  in  a  case 
like  this,  are  equally  applicable  to  succession  duty,  and  the  Suc- 
cession Duty  Act  equally  requires  some  limitation  in  its  applica- 
tion as  the  Legacy  Duty  Acts ;  because  to  my  mind  everything  that 
is  true  of  the  one  is  equally  true  of  the  other.  There  is  the  same 
difficulty  in  applying  the  Succession  Duty  Act  to  ad  persons  every- 
where, whether  domiciled  in  England  or  not,  as  there  is  in  the  case 
of  the  Legacy  Duty  Acts ;  and  I  cannot  see  why  the  same  reason- 
ing should  not  apply  to  the  one  as  the  other.  I  say  most  unfeign- 
edly,  though  I  have  thought  it  right  to  give  expression  to  the 
doubt  I  entertain,  I  feel  myself  so  embarrassed  in  forming  an 
opinion  that  while  I  certainly  agree  in  the  conclusion  at  which  my* 
Brothers  Martin  and  Channell  have  arrived,  I  cannot  say  I  differ 
even  in  the  reasons  they  have  given  for  it. 

Pollock,  C.  B. — I  agree  that  the  Crown  is  entitled  to  duty ; 
but  the  grounds  of  my  decision  are  not  the  same  as  those  stated 
by  the  other  members  of  the  Court.  I  think  that  the  argument  of 
the  Attorney-General  is  well  founded,  and  he  established  to  my 
satisfaction  that  if  the  question  now  arose  for  the  first  time  we 
should  not  be  wrong  in  deciding  that  the  testator,  a  Frenchman, 
who  had  resided  in  England  a  considerable  number  of  years  and 
amassed  his  property  here,  was  domiciled  in  England ;  and  there- 
fore on  his  death  his  property  was  liable  to  be  distributed  accord- 
ing to  the  law  of  England,  and  was  subject  to  legacy  duty.  I  am 
not  satisfied,  however,  that  such  a  decision  would  be  in  accordance 
with  some  recent  authorities.  Nevertheless,  I  entertain  a  very 
clear  view  of  the  grounds  on  which  my  opinion  is  founded,  and  in 
the  result  concur  with  the  other  members  of  the  Court.  I  own 
that  if  I  were  to  express  all  the  doubts  to  which  this  question  gives 
rise,  I  should  require  considerable  time  to  state  them  at  length. 


DOMICILS   OF    ORIGIN   AND   OF    CHOICE.  51 

The  question  of  domicile  is  a  very  large  one,  and  it  is  not  easy 
to  ascertain  affirmatively  all  that  belongs  to  it,  particularly  when 
applied  to  English  law.  It  is  somewhat  remarkable  that  "domi- 
cile" is  now  very  frequently  the  subject  of  discussion  in  our 
Courts,  and,  as  we  have  more  than  once  observed,  the  word  is 
comparatively  entirely  new  to  the  English  law,  for  neither  it  nor 
the  notion  it  conveys  belongs  to  anything  English.  The  word 
"domicile"  is  not  to  be  found  in  Viner's  Abridgment,  Bacon's 
Abridgment,  Comyn's  Digest,  or  in  English  law  books  from  Brac- 
ton  down  to  Blackstone.  An  English  subject  is  domiciled  in  every 
part  of  England ;  but  that  is  not  so  in  foreign  countries  where  the 
law  of  domicile  prevails.  There  a  man  is  domiciled  at  the  particu- 
lar part  of  the  dominions  where  he  was  born,  and  there  are  certain 
acts  which  he  cannot  perform  unless  at  his  place  of  domicile.  The 
English  law  knows  no  such  disability.  A  British  subject  may 
marry  or  make  a  will  in  any  part  of  the  British  dominions.  I 
think  that  for  certain  purposes  a  person  may  have  more  than  one 
place  of  domicile.  I  apprehend  that  a  peer  of  England,  who  is 
also  a  peer  of  Scotland,  and  has  estates  in  both  countries,  who 
comes  to  Parliament  to  discharge  a  public  duty  and  returns  to 
Scotland  to  enjoy  the  country,  is  domiciled  both  in  England  and 
Scotland.  A  lawyer  of  the  greatest  eminence,  formerly  a  mem- 
ber of  this  Court,  and  now  a  member  of  the  House  of  Lords,  to 
whose  opinion  I,  in  common  with  all  the  profession,  attach  the 
highest  importance,  once  admitted  to  me  that  for  some  purposes 
a  man  might  have  a  domicile  both  in  Scotland  and  England.  I 
cannot  understand  why  he  should  not.  Then  why  may  not  the 
same  thing  occur  with  reference  to  commerce,  manufactures,  or 
any  other  purpose  ?  Suppose,  for  instance,  a  person  born  in  Eng- 
land of  French  parents  (and  therefore  a  French  subject,  with  an 
English  domicile  of  origin),  had  a  large  commercial  establishment 
in  both  countries,  without  any  particular  attachment  to  either,  but 
only  intending  to  make  the  most  money  he  could  in  both.  Why 
should  he  not,  for  the  purposes  of  the  particular  establishment,  be 
domiciled  in  both  countries,  so  that  his  property  in  England  would 
be  administered  according  to  the  law  of  England,  and  his  property 
in  France  according  to  the  law  of  France  ?     But  somehow  or  other 


52  PRIVATE    INTERNATIONAL   LAW. 

a  notion  has  crept  in  that  although  there  may  be  three'  sorts  of 
domicile,  as  in  France,  there  can  be  only  one  for  the  purpose  of 
administering  property  in  England.  I  cannot  conceive  what  rea- 
son or  necessity  there  is  for  any  such  distinction,  and  in  the  case 
which  I  have  put  I  cannot  understand  why  a  person,  for  the  pur- 
pose of  commerce  and  manufacture,  should  not  have  a  domicile 
both  in  England  and  France. 

Now,  the  conclusion  to  which  the  authorities  lead  is,  that  the 
testator  was  domiciled  in  England.  Where  British  subjects  have 
settled  in  the  East  Indies  and  there  realized  a  large  personal  prop- 
erty, it  has  been  considered  exempt  from  legacy  duty  because  they 
have  acquired  what  is  called  an  Anglo- Indian  domicile.  But  there 
can  be  no  doubt  that  in  every  one  of  those  cases  the  party  intended 
to  return  to  this  country  and  here  spend  the  remainder  of  his  days. 
I  very  much  doubt  whether  the  noble  and  learned  lords  who,  in  the 
case  of  Morehouse  v.  Lord,  expressed  the  opinions  which  have 
been  adverted  to,  intended  to  say  that  the  decisions  with  respect 
to  Anglo-Indian  domicile  were  wrong.  The  argument  of  the 
Attorney-General  has  satisfied  me  that  the  testator  acquired  an 
English  domicile ;  at  the  same  time  I  think  that  my  learned  broth- 
ers are  correct  in  saying  that  the  opinions  expressed  by  the  noble 
and  learned  lords  who  decided  the  case  of  Moorehouse  v.  Lord  are 
calculated  to  convey  the  notion  that  the  definition  of  Mr.  Justice 
Storv  (Story  on  the  Conflict  of  Laws,  sec.  43,  p.  53)  is  not  correct, 
and  that  a  new  definition  of  domicile  may  be  given  and  acted  upon 
in  this  country.  However,  a  judgment  of  the  House  of  Lords  is 
only  binding  so  far  as  it  necessarily  determines  some  certain 
proposition ;  it  is  not  binding  as  to  the  reasons  given  by  each  of 
the  noble  lords,  even  though  they  should  all  concur  in  giving  the 
same.  If,  indeed,  the  reasons  for  a  judgment  are  so  interwoven 
with  the  decision  as  to  form  a  necessary  part  of  it,  no  doubt  it  is 
an  authority  which  no  one  ought  to  treat  lightly,  and  to  which 
every  Judge  ought  to  defer  if  he  can ;  but  he  is  not  bound  to  do  so, 
though  he  is  undoubtedly  bound  by  the  judgment,  or  what  may 
be  called  its  essence  and  principle.  In  the  case  of  Moorehouse 
v.  Lord  I  should  have  come  to  precisely  the  same  conclusion  as  the 
noble  and  learned  lords  who  decided  it,  without  thinking  it  neces- 


DOMICILS   OP   ORIGIN   AND   OF    CHOICE.  53 

sary  to  give  a  new  definition,  or  to  enunciate  any  doctrine  to  be 
regarded  as  a  new  and  improved  view  of  the  law  of  domicile,  as 
if  Mr.  Justice  Story  was  no  authority,  and  all  the  antecedent 
writers  on  the  subject  wrong.  I  own  I  am  not  of  that  opinion. 
In  my  judgment  the  definition  of  Mr.  Justice  Story  is  for  all  prac- 
tical purposes  far  more  reasonable  than  any  other  that  I  am  aware 
of.  Seeing  that  the  definition  given  in  Moorehouse  v.  Lord  was 
not  necessary  for  the  decision  of  that  case,  I  am  not  disposed  to 
adopt  it  in  this.  I  am  rather  disposed  to  adopt  the  argument  of 
the  Attorney-General,  and  agree  with  him  that  the  testator  was 
domiciled  in  England,  and  therefore  his  personal  property  is  liable 
to  legacy  duty. 

But  it  was  further  argued,  on  the  part  of  the  Crown,  that  as- 
suming the  testator  was  domiciled  in  France,  and  his  property 
exempt  from  legacy  duty,  the  case  of  In  re  Wallop's  Trust  is  an 
authority  that  it  is  liable  to  succession  duty.  I  think  that  the 
opinions  of  the  learned  Judges  of  the  Court  of  Appeal  in  Chancery 
are  entitled  to  the  greatest  respect,  but  that  Court  is  not,  in  mat- 
ters of  revenue,  a  Court  of  co-ordinate  jurisdiction  with  this 
Court.  I  own  that  if  in  this  case  there  had  been  a  French  domi- 
cile I  should  have  entertained  considerable  doubt  whether  the 
property  was  liable  to  succession  duty.  But  I  so  far  respect  the 
opinions  of  the  learned  Judges  who  decided  Wallop's  Case  that  I 
should  be  disposed  to  adopt  their  view.  But  whether  we  take  one 
view  or  the  other,  according  to  the  decision  of  the  Lords  Jus- 
tices the  Crown  is  entitled  to  duty ;  and  if  the  Attorney-General  is 
right  in  saying  that  the  domicile  was  English,  which  I  think  is 
really  the  correct  view,  there  can  be  no  doubt  on  the  subject.  I 
therefore  agree  with  the  rest  of  the  Court  that  the  Crown  is  en- 
titled to  duty;  at  the  same  time  I  have  thought  it  right  to  make 
these  remarks,  because  there  are  principles  involved  in  our  de- 
cision which  I  think  by  no  means  free  from  doubt. 

Cause  shown  for  non-delivery  of  the  account  and  non- 
payment of  the  duty  and  costs,  disallowed ;  and  order 
for  payment  of  the  duty  and  costs. 


54  PRIVATE    INTERNATIONAL   LAW. 

DOMICIL  IN  UNCIVILIZED   COUNTRIES. 
DICEY  CONFLICT  OP   LAWS,  APPENDIX,  NOTE  1.* 

The  Rules  in  this  Digest  apply  only  to  rights  acquired  under 
the  law  of  a  civilised  country.  What,  however,  is  the  law,  if  any, 
which  in  the  opinion  of  English  Courts  governs  transactions  tak- 
ing place  in  an  uncivilised  country,  e.  g.}  in  the  Soudan,  or  in  some 
part  of  the  world  not  under  the  sovereignty  of  any  ruler  recog- 
nised by  European  law  ? 

The  question  is  one  which  may  at  times  come  before  an  Eng- 
lish Court;  it  is  also  one  to  which,  in  the  absence  of  decisions, 
nothing  like  a  final  answer  can  be  given ;  all  that  can  be  done  is  to 
note  a  few  points,  as  to  the  matter  before  us,  on  which  it  is  pos- 
sible to  conjecture,  at  any  rate,  what  would  be  the  view  taken  by 
English  Courts. 

We  may  assume  that  the  legal  effect  of  a  transaction  taking 
place,  e.  g.,  a  contract  made,  in  an  uncivilised  country  could  not 
come  before  an  English  Court  unless  one  of  the  parties  at  least 
were  the  subject  of  some  civilised  state. 

(i)  As  to  domicil. — An  Englishman — and  probably  the  citi- 
zen of  any  civilised  country — does  not,  it  would  seem,  by  fixing  his 
permanent  residence,  or  settling  in  an  uncivilised  country,  acquire, 
for  legal  purposes,  a  domicil  in  such  country.  A  domiciled  Eng- 
lishman who  settles  in  China,  and  a  fortiori  who  settles  in  a  strict- 
ly barbarous  country,  retains  his  English  domicil.  A,  an  English- 
man, was  settled  at  Shanghai.  "In  these  circumstances  it  was  ad- 
"mitted  by  the  petitioner's  counsel  [in  a  case  as  to  liability  to 
"legacy  duty]  that  they  could  not  contend  that  the  testator's  domi- 
"cil  was  Chinese.  This  admission  was  rightly  made.  The  differ- 
ence between  the  religion,  laws,  manners,  and  customs  of  the 
"Chinese  and  of  Englishmen  is  so  great  as  to  raise  every  presump- 
tion against  such  a  domicil,  and  brings  the  case  within  the  prin- 
ciples laid  down  by  Lord  Stowell  in  his  celebrated  judgment  in 
"The  Indian  Chief  [1801,  3  Rob.  Ad.  Cas.  29],  and  by  Dr.  Lush- 
"ington  in  Maltass  v.  Maltass'!  [1844,  1  Rob.Ecc.Cas.  67,  80,  81]. 
{In  re  Tootal's  Trusts,  1883,  23  Ch.  D.  532,  534,    judgment    of 

♦This  "note"  is  inserted  by  permission  of  the  American  publisher  of  "  Dicey  on  the 
Conflict  of  Laws." 


DOMICIL   IN   UNCIVILIZED    COUNTRIES.  55 

Chitty,  J.  Semble,  however,  that  the  cases  do  not  show  that  an 
Englishman  might  not  for  legal  purposes  acquire  a  domicil  in  such 
a  country  as  China.  All  they  actually  establish  is  the  strength  of 
the  presumption  against  his  intending  to  acquire  a  domicil  in 
China,  or  rather  to  subject  himself  to  Chinese  law.) 

The  principle  laid  down  or  suggested  in  these  words  by  Mr. 
Justice  Chitty — namely,  that  settlement  in  an  uncivilised  country 
does  not  change  the  domicil  of  the  citizen  of  a  civilised  country,  or 
at  any  rate  of  a  domiciled  Englishman — goes  (if  it  can  be  main- 
tained) some  way  towards  solving  one  or  two  difficult  questions, 
e-  g->  What  is  the  law  governing  the  validity  of  a  will  made  in  an 
uncivilised  country  by  an  Englishman  domiciled  in  England  ? 

(2)  As  to  marriage. — A  marriage  made  in  a  strictly  barbarous 
country  between  British  subjects,  or  between  a  British  subject  and 
a  citizen  of  a  civilised  country,  e.  g.,  an  Italian,  and  it  would  seem 
even  between  a  British  subject  and  a  native  of  such  uncivilised 
country,  will,  it  is  submitted,  be  held  valid  as  regards  form,  if 
made  in  accordance  with  the  requirements  of  the  English  common 
law ;  and  it  is  extremely  probable  that,  with  regard  to  such  a  mar- 
riage, the  common  law  might  now  be  interpreted  as  allowing  the 
celebration  of  a  marriage  per  verba  de  prxsenti  without  the  pres- 
ence of  a  minister  in  orders.  A  local  form,  also,  if  such  there  be, 
would  seem  to  be  sufficient,  at  any  rate  where  one  of  the  parties  is 
a  native.  It  is,  however,  essential  that  the  intention  of  the  parties 
should  be  an  intention  to  contract  a  "marriage"  in  the  sense  in 
which  that  term  is  known  in  Christian  countries,  i.  e.,  the  union  of 
one  man  to  one  woman  for  life  to  the  exclusion  of  all  others. 
Capacity  to  marry  would  apparently  depend  upon  the  law  of  the 
domicil  of  the  parties,  or  perhaps  more  strictly  of  the  husband. 

(3)  As  to  contract. — Capacity  to  contract  must,  it  would 
seem,  depend  upon  the  law  of  the  domicil  of  the  parties  to  the 
agreement.  If  either  of  the  parties  were  under  an  incapacity  by 
the  law  of  his  domicil  to  enter  into  a  contract,  an  agreement  made 
by  him  in  an  uncivilised  country  would  probably  not  be  enforceable 
against  him  in  England.  This  we  may  be  pretty  certain  would  be 
the  case  were  the  party  under  an  incapacity  an  English  infant 
domiciled  in  England. 


56  PRIVATE    INTERNATIONAL   LAW. 

The  formalities  of  a  contract  probably,  and  its  effect  almost 
certainly,  would,  under  the  circumstances  supposed,  be  governed 
by  the  proper  law  of  the  contract,  i.  e.,  by  the  law  contemplated  by 
the  parties.  Suppose  X  and  A  enter  into  a  contract  in  the  Soudan. 
If  the  contract  is  to  be  performed  in  England,  the  incidents  would 
be  governed  by  English  law  ;  whilst,  if  it  is  to  be  performed  in  Ger- 
many, its  incidents  would  be  governed  by  German  law. 

(4)  As  to  alienation  of  movables. — If  the  movables  are  at  the 
time  of  the  alienation  situate  in  the  barbarous  country,  probably 
English  Courts  might  hold  that  the  alienation  must,  in  order  to  be 
valid,  be  one  which,  if  made  in  England,  would  be  valid  according 
to  the  English  common  law.  There  is  little  doubt  that  if,  though 
the  alienation  takes  place  in  an  uncivilised  country,  the  movables 
alienated  are  situate  in  a  civilised  country,  the  validity  of  the  alien 
ation  would  depend  on  the  law  of  that  country  (lex  situs). 

(5)  Torts. — When  an  act  which  damages  A  or  his  property  is 
done  by  X  in  a  barbarous  country,  the  character  of  the  act  cannot 
depend  on  the  law  of  the  country  where  it  is  done.  If  both  X  and 
A  are  domiciled  in  England,  the  act  is  probably  wrongful  and 
actionable  in  England,  if  it  would  have  been  tortious  if  done  in 
England.  If  the  two  parties  are  domiciled,  the  one  in  England 
and  the  other,  e.  g.,  in  Germany,  then  the  act  is  probably  action- 
able in  England,  if  it  be  one  which  is  wrongful  bcth  according  to 
the  law  of  England  and  according  to  the  law  of  Germany.  But 
we  can  here  be  guided  by  nothing  but  analogy,  and  all  we  can  do 
is  to  consider  how  far  the  rules  which  govern  the  possibility  of 
bringing  an  action  in  England  for  a  tort  committed  in  a  foreign 
and  civilised  country  can  by  analogy  be  made  applicable  to  an 
action  for  a  tort  committed  in  an  uncivilised  country.  An  action 
cannot  be  maintained  in  England  for  a  trespass  to  land  in  an  un- 
civilised country. 

(6)  Procedure. — An  action  in  England  in  respect  of  any 
transaction  taking  place  in  an  uncivilised  country  is  clearly,  as  re- 
gards all  matters  of  procedure,  governed  by  English  law. 

On  most  of  the  points,  however,  considered  in  this  Note,  and 
many  others  which  might  suggest  themselves,  we  must  trust 
wholly  to  conjecture,  and  must  admit  that  what  is  the  law,  if  any, 


REVERTER   OF   DOMICIL.  57 

governing  transactions  taking  place  in  an  uncivilised  country,  is 
in  many  instances  a  matter  of  absolute  uncertainty.  If,  for  exam- 
ple, X,  an  Englishman  domiciled  in  England,  whilst  in  an  un 
civilised  country  promises  A,  a  Scotchman  domiciled  in  Scotland, 
out  of  gratitude  for  some  past  service,  to  pay  A  £10  on  their  return 
home,  is  the  promise  governed  by  English  law,  and  therefore  in- 
valid for  want  of  a  consideration,  or  by  Scotch  law,  under  which, 
apparently,  it  may  be  valid?  How,  again,  if  the  position  of  the 
parties  had  been  reversed,  and  the  promise  had  been  made  by  A, 
the  Scotchman  domiciled  in  Scotland,  to  X,  the  Englishman  domi- 
ciled in  England  ?  To  these  and  similar  inquiries  no  certain  reply 
is,  it  is  conceived,  possible. 


REVERTER  OF   DOMICIL. 
BANK  V.  BALCOM,  35  CONN.  351,  (1868). 

Bill  of  interpleader,  brought  to  the  Superior  Court  in  New 
Haven  County,  against  Henry  A.  Balcom,  administrator  upon 
the  estate  of  Abby  M.  Lewin,  and  Luzon  B.  Morris,  administrator 
upon  the  estate  of  Frederick  D.  Lewin,  her  husband,  praying  that 
the  respondents  might  interplead  and  have  adjudicated  their  re- 
spective rights  to  certain  bonds,  formerly  the  property  of  the  said 
Abby,  which  were  held  by  the  plaintiffs  and  to  which  each  of  the 
respondents  made  claim.  The  respondents  filed  answers  respect- 
ively, and  the  case  was  referred  to  a  committee,  who  made  the  fol- 
lowing report  of  the  facts  in  the  case. 

Frederick  D.  Lewin  was  born  in  Johnsbury,  in  the  state  of 
New  York,  in  the  year  1834,  where  his  parents  then  resided.  His 
father,  who  was  an  alien  born,  has  continued  to  reside  in  the  state 
of  New  York  to  the  present  time.  Leaving  that  place  in  his  child- 
hood he  subsequently  resided,  by  successive  changes  of  residence, 
in  various  states  and  places,  until  June  5th,  1861,  when  being  then 
temporarily  resident  in  Middletown  in  this  state,  he  there  married 
Abby  M.  Eddy,  the  person  specified  in  the  petition  as  Abby  M. 
Lewin.  He  derived  no  support  from  his  father  after  about  the 
age  of  fourteen  years.     Immediately   after   their   marriage  Mr. 


58  PRIVATE    INTERNATIONAL   LAW. 

Lewin  and  his  wife  took  up  their  residence  in  the  state  of  Mis- 
souri. In  the  spring  of  1862  they  changed  their  residence  to 
Bethel  in  this  state,  where  they  coninued  to  reside  until  1864. 
Then  abandoning  that  residence  they  removed,  after  a  short  stay 
at  Middletown,  to  Branford  in  this  state,  where  Mr.  Lewin  took 
up  his  residence  in  the  summer  or  fall  of  1864,  and  became  rector 
of  a  church  in  that  town. 

In  July,  1865,  while  Mr.  Lewin  and  his  wife  were  residing 
in  Branford,  a  brother  of  his  wife  died,  and  subsequently,  while 
they  were  still  residing  in  Branford,  she,  Abby,  received  from  the 
estate  of  her  brother,  by  bequest  from  him,  the  sum  of  three  thou- 
sand dollars,  as  her  own  proper  estate;  which  sum  she  deposited 
personally  in  the  First  National  Bank  of  New  Haven,  on  the  7th 
day  of  March,  1866,  directing  that  the  same  should  be  entered  to 
her  credit  upon  the  books  of  the  bank;  whereupon  that  amount 
was  credited  to  her,  in  her  own  name  by  the  bank. 

On  the  23d  day  of  April,  1866,  she  personally  directed  the 
bank  to  invest  a  portion  of  the  fund  in  bonds  of  the  United  States 
to  the  amount  (not  including  premium)  of  $2,500;  and  thereupon, 
in  obedience  to  her  directions,  the  bank  purchased  such  bonds,  ex- 
pending of  said  fund  in  the  purchase  thereof  (including  pre- 
mium) $2,625.  The  bank  regarded  the  bonds,  at  the  time  of  the 
purchase,  as  her  property,  and  set  them  aside  in  an  envelope 
marked  "U.  S.  Bonds,  property  of  Mrs.  Abby  M.  Lewin,"  and 
received  no  directions  from  Mr.  Lewin  and  knew  nothing  of  him, 
so  far  as  the  bonds  were  concerned,  at  that  time. 

Shortly  after  the  purchase  of  the  bonds,  and  about  the  1st 
day  of  May,  1866,  Mr.  Lewin  and  his  wife  left  Branford  and  went 
to  Geneseo  in  the  state  of  New  York,  where  both  of  them  re- 
mained until  her  death,  which  occurred  on  the  25th  day  of  July, 
1866.     She  died  intestate  and  without  issue. 

Mr.  Lewin  left  Branford  with  intent  to  abandon  his  residence 
at  that  place,  and  with  no  intention  of  returning  there.  He  did 
not  go  to  Geneseo  with  intent  to  adopt  that  place  as  a  place  of 
permanent  residence.  He  and  his  wife  being  then  in  feeble  health, 
he  went  with  her  to  Geneseo  for  the  purpose  of  spending  the  sum- 
mer there  in  the  house  of  his  brother-in-law,  in  the  hope  that  the 


REVERTER   OF   DOMICIL.  59 

health  of  himself  and  wife  might  be  benefited  by  the  change  of  air 
and  the  use  of  the  water  of  certain  mineral  springs  near  Geneseo. 
At  the  time  when  he  left  Branford,  and  from  that  time  until  the 
death  of  his  wife,  he  had  no  definite  intentions,  in  regard  to  the 
selection  of  any  place  as  the  place  of  his  future  residence.  So  far 
as  he  had  any  sort  of  intention  on  the  subject,  it  was,  during  the 
whole  time,  an  intention  conditional  and  uncertain,  whereby  all 
decision  in  his  mind  upon  the  question  was  left  in  abeyance,  to  be 
determined  in  the  future  by  the  turn  which  his  wife's  disease: 
might  take,  and  by  other  circumstances  which  might  or  might  not 
arise. 

About  the  ist  of  August,  1866,  Mr.  Lewin  left  Geneseo  and 
went  to  Windham,  in  this  state.  It  does  not  appear,  and  is  not 
found,  that  at  that  time  he  had  decided  in  his  own  mind  where  he 
would  take  up  his  residence;  but  during  his  subsequent  stay  in 
Windham  he  did  make  up  his  mind  upon  the  subject,  and  deter- 
mined upon  Windham  as  the  place  of  his  residence, — regarding  it 
as  his  home  and  making  preparations  to  go  into  business  there. 
On  the  3rd  day  of  January,  1867,  he  died  at  Windham,  intestate 
and  without  issue,  being  then,  and  having  for  some  time  pre- 
viously been,  resident  and  domiciled  at  Windham.  He  was  buried 
at  Geneseo  at  his  request. 

While  Mrs.  Lewin  was  living  at  Geneseo  she  drew  from  the 
bank,  without  any  intervention  of  her  husband,  sums  amounting 
in  all  to  $400, — the  last  of  which  sums  was  paid  to  her  on  the  14th 
day  of  July,  1866. 

On  the  23rd  of  July,  1866,  Mr.  Lewin  sent  to  the  president 
of  the  bank  a  letter,  enclosing  another  letter,  both  of  which  are 
given  below.  Thev  were  both  written  by  him,  except  that  the 
signature  of  the  enclosed  letter  was  subscribed  by  Mrs.  Lewin 
with  her  own  hand.  She  was  then  in  a  very  feeble  condition  and 
was  near  her  death,  but,  in  the  absence  of  all  satisfactory  proof  to 
the  contrary,  it  appeared,  and  is  therefore  hereby  found,  that  she 
was  intelligently  aware  of  the  contents  of  the  letter  when  she  so 
signed  it,  and  that  her  signature  was  her  own  free  act.  The  let- 
ters were  as  follows : 

"Geneseo,  July  23rd,  1866.     Hon.  H.  M.  Welch,  Dear  Sir, 


60  PRIVATE    INTERNATIONAL   LAW. 

I  enclose  a  note  from  Mrs.  Lewin  with  regard  to  transferring  her 

account  at  bank  from  her  name  to  mine.   She  is  very  ill  indeed  and 

will  be  in  need  of  money  from  time  to  time.    By  slow  degrees  she 

managed  to  complete   her  short    note,  with    a  feeble,  trembling 

hand.     Please  send  the  balance  of  which  you  speak  at  once,  and 

sell  one  of  the  bonds.     Mrs.  Lewin  is  so  very  low,  and  is  such  a 

sufferer,  that  I  am  very  much  alarmed  for  the  result.     Please  let 

me  hear  from  you  at  your  earliest  convenience.     Direct  to  "Rev. 

F.  D.  Lewin."     With  many  thanks  for  your  kindness,  I  am,  Very 

truly  yours, 

F.  D.  Lewin." 

"Geneseo,  July  23rd,  1866.  Hon.  H.  M.  Welch,  Dear  Sir. 
My  health  is  so  much  worse  that  I  fear  I  may  not  be  able  to  draw 
for  money  when  needed.  I  desire  therefore  to  have  whatever 
bonds  or  money  there  may  be  in  my  name  transferred  to  that  of 
my  husband,  Rev.  F.  D.  Lewin,  and  you  are  hereby  authorized  and 
requested  to  make  such  transfer.  Many  thanks  for  your  kind- 
ness.    I  trust  that  this  is  all  that  is  necessary  legally.     Your  truly, 

Abbie  M.  Lewin/' 

In  obedience  to  the  directions  of  these  letters,  the  bank,  on 
the  28th  day  of  July,  1866,  sold  one  of  the  bonds  and  remitted  the 
proceeds  thereof  to  Mr.  Lewin ;  and  subsequently,  in  obedience  to 
directions  received  from  him,  sold  some  of  the  bonds,  from  time 
to  time,  and  remitted  to  him  the  proceeds  thereof ;  so  that,  on  the 
first  day  of  November,  1866,  the  balance  of  the  original  fund  re- 
maining in  the  hands  of  the  bank,  consisted  of  two  bonds  of  the 
United  States,  one  for  $1,000  and  one  for  $500,  which  the  bank 
has  ever  since  held,  and  still  holds  awaiting  the  result  of  the  pres- 
ent suit. 

At  various  times  after  the  death  of  his  wife,  Mr.  Lewin,  in 
conversation  with  persons  related  to  his  wife  by  marriage,  dis- 
claimed all  right  to  use  the  fund  except  for  the  purpose  of  defray- 
ing his  wife's  funeral  expenses  and  erecting  a  monument  to  her 
memory ;  but  he  did,  nevertheless,  in  fact,  from  time  to  time  after 
his  wife's  death,  draw  upon  the  fund  to  an  amount  exceeding 
$1,000,  the  principal  part  of  which  amount  he  did  not  use  for  the 


REVERTER   OF   DOMICIL.  61 

purpose  of  defraying  her  funeral  expenses  and  for  a  monument, 
but  for  his  own  personal  purposes. 

At  all  times  prior  to  the  receipt  of  the  two  letters  above  men- 
tioned the  bank  received  and  obeyed,  in  reference  to  the  fund,  the 
orders  of  Mrs.  Lewin  only ;  and  afterwards,  until  the  death  of  Mr. 
Lewin,  received  and  obeyed,  implicitly,  his  orders  in  relation 
thereto. 

On  the  30th  day  of  March,  1867,  William  Lewin,  of  Buffalo, 
in  the  state  of  New  York,  father  of  said  Frederick,  took  out  letters 
of  administration  upon  his  estate,  in  due  form  of  law  in  the  surro- 
gate's court  for  the  county  of  Livingston,  in  that  state,  within 
which  county  Geneseo  is  situated. 

On  the  17th  day  of  April,  1867,  letters  of  administration  were 
issued  by  the  court  of  probate  for  the  district  of  New  Haven,  upon 
the  estate  of  Frederick,  to  Luzon  B.  Morris,  respondent,  and  on 
the  6th  day  of  February,  1867,  letters  of  administration  were  is- 
sued by  said  last  named  court  to  Henry  A.  Balcom,  respondent, 
upon  the  estate  of  said  Abby,  the  decree  in  each  case  describing 
the  intestate  as  late  of  Geneseo  in  the  state  of  New  York  and  as 
having  property  in  this  state  within  the  jurisdiction  of  the  court. 

Upon  these  facts  the  case  was  reserved  for  the  advice  of  this 
court. 

C.  R.  Ingersoll,  for  the  respondent,  Balcom. 

Morris,  for  himself. 

Park,  J. — The  principal  question  in  this  case  is  in  regard  to 
the  domicil  of  Mrs.  Lewin  at  the  time  of  her  death.  She  died  in 
the  state  of  New  York,  and  the  administrator  of  her  estate  claims 
that  her  domicil  at  the  time  was  in  Connecticut ;  while  the  admin- 
istrator of  the  estate  of  her  husband  claims  that  it  was  in  the  state 
of  New  York. 

It  appear  by  the  finding  of  the  court  that  her  husband  was  a 
native  of  the  state  of  New  York;  that  he  married  Mrs.  Lewin 
while  temporarily  residing  in  Connecticut ;  that  immediately  after 
their  marriage  they  went  to  the  state  of  Missouri,  and  resided 
there  till  the  spring  of  1862,  when  they  returned  to  Connecticut, 
and  after  residing  at  various  places  in  the  state,  became  perma- 
nently located  in  the  town  of  Branford.     While  their  domicil  con- 


62  PRIVATE    INTERNATIONAL   LAW. 

tinued  there,  Mrs.  Lewin  received  a  bequest  that  had  been  left  her 
by  her  brother.  Sometime  in  the  spring  of  1866  Mr.  Lewin  and 
his  wife  left  Branford  with  the  intent  to  abandon  his  residence 
there,  and  went  to  Geneseo  in  the  state  of  New  York,  where  he 
remained  till  the  death  of  his  wife,  which  occurred  in  the  month 
of  July  of  the  same  year. 

The  character  of  Mr.  Lewin's  residence  at  Geneseo  is  thus 
described  in  the  report  of  the  committee.  "He  did  not  go  to  Gene- 
seo with  the  intent  to  adopt  that  place  as  a  place  of  permanent 
residence.  He  and  his  wife,  being  in  feeble  health,  went  to  Gene- 
seo for  the  purpose  of  spending  the  summer  there  in  the  house  of 
his  brother-in-law,  in  the  hope  that  the  health  of  himself  and  wife 
might  be  benefited  by  the  change  of  air,  and  by  the  use  of  the 
water  of  certain  mineral  springs  near  Geneseo.  From  the  time 
he  left  Branford  until  the  death  of  his  wife  he  had  no  definite  in- 
tentions in  regard  to  the  selection  of  any  place  as  the  place  of  his 
future  residence.  So  far  as  he  had  any  intention  on  the  subject 
it  was,  during  the  whole  period  of  time,  an  intention  conditional 
and  uncertain,  whereby  all  decision  in  his  mind  upon  the  question 
was  left  in  abeyance,  to  be  determined  in  the  future  by  the  turn 
which  his  wife's  disease  might  take,  and  by  other  circumstances 
which  might  or  might  not  arise." 

In  the  month  of  August  of  the  same  year  he  left  Geneseo  and 
returned  to  Connecticut,  and  not  long  afterwards  became  perma- 
nently settled  in  the  town  of  Windham.  These  facts  render  it 
apparently  clear  that  Mr.  Lewin  was  not  domiciled  in  the  state  of 
New  York  at  the  time  his  wife  died. 

But  it  is  claimed  that,  inasmuch  as  he  was  a  native  of  the 
state  of  New  York,  and  inasmuch  as  he  left  Branford  with  no 
intention  of  returning  to  that  place  to  reside,  and  went  to  the  state 
of  New  York,  and  remained  there,  in  fact,  for  a  time,  no  matter 
what  the  character  of  his  abiding  may  have  been,  he  became  domi- 
ciled there,  on  the  principle  that  a  native  domicil  easily  reverts. 
Would  it  be  claimed  that  if  Mr.  Lewin  had  left  Branford  with  the 
intent  to  take  up  his  residence  in  the  state  of  Ohio,  and  on  his  way 
sojourned  a  few  days  in  the  state  of  New  York,  that  would  be 
sufficient?     And  what  real  difference  is  there  between  that  case 


REVERTER   OF   DOMICIL.  63 

and  the  present?  In  both  cases  Mr.  Lewin  had  no  intention  of 
permanently  remaining  in  the  state  of  New  York.  All  the  differ- 
ence there  is  consists  in  the  fact,  that  in  one  case  his  mind  is  made 
up  in  regard  to  his  future  residence  and  in  the  other  it  is  not.  His 
abiding  in  both  cases  is  temporary.  We  said  in  another  case  upon 
the  present  circuit,  that  a  temporary  residence  did  not  change  its 
character  by  mere  lapse  of  time.  Whether  it  is  longer  or  shorter 
it  is  temporary  still.  But  the  principle  that  a  native  domicil  easily 
reverts  applies  only  to  cases  where  a  native  citizen  of  one  country 
goes  to  reside  in  a  foreign  country,  and  there  acquires  a  domicil 
by  residence  without  renouncing  his  original  allegiance.  In  such 
cases  his  native  domicil  reverts  as  soon  as  he  begins  to  execute  an 
intention  of  returning;  that  is,  from  the  time  he  puts  himself  in 
motiont  bona  fide  to  quit  the  country  sine  animo  revertendi,  be- 
cause the  foreign  domicil  was  merely  adventitious,  and  de  facto, 
and  prevails  only  while  actual  and  complete.  The  Indian  Chief, 
3  Rob.  Adm.  R.,  17,  24;  The  Venus,  8  Cranch,  253,  280,  301 ;  The 
State  v.  Hallett,  8  Ala.,  159;  Case  of  Miller's  Estate,  3  Rawle,  ^12,, 
319;  The  Ann  Green,  1  Gail.,  275,  286;  Catlin  v.  Gladding,  4 
Mason,  308;  Matter  of  Wrigly,  8  Wend.,  134,  140. 

This  principle  has  reference  to  a  national  domicil  in  its  en- 
larged sense,  and  grows  out  of  native  allegiance  or  citizenship. 
It  has  no  application  when  the  question  is  between  a  native  and 
acquired  domicil,  where  both  are  under  the  same  national  jurisdic- 
tion. It  was  so  held  in  the  case  of  Monroe  v.  Douglas,  5  Mad- 
dock,  379.  In  that  case  the  question  was  between  the  native 
domicil  of  a  party  in  Scotland,  and  a  domicil  of  residence  acquired 
by  the  same  party  in  India,  and  the  Vice  Chancellor  said  he  could 
find  no  difference  in  principle  between  the  original  domicil  of  the 
party  and  the  acquired  one  in  India.  See  also  1  American  Lead- 
ing Cases,  742. 

If  this  principle  does  not  apply  to  the  case  in  question,  then 
it  follows  from  this  finding  that  Mr.  Lewin  had  no  domicil  in  the 
state  of  New  York  when  his  wife  died,  but  his  domicil  at  that  time 
remained  in  the  town  of  Branford,  in  accordance  with  the  maxims 
that  universally  prevail  in  relation  to  this  subject,  that  every  per- 
son  must   have   a   domicil    somewhere,  that   he    can   have   but 


64  PRIVATE    INTERNATIONAL   LAW. 

one  domicil  for  one  and  the  same  purpose,  and  that  a 
domicil  once  acquired  continues  until  another  is  established.  Ab- 
ington  v.  North  Bridgewater,  23  Pick.,  170;  Thorndike  v.  City  of 
Boston,  1  Met.,  242 ;  Crawford  v.  Wilson,  4  Barb.,  504 ;  Rue  High, 
Appellant,  2  Doug.  (Mich.)  515;  Somerville  v.  Lord  Somerville, 
5  Vesey,  750;  Greene  v.  Greene,  11  Pick.,  410;  Walker  v.  Bank 
of  Circleville,  15  Ohio,  288. 

It  is  claimed  further,  that  the  bonds  in  question  became  the 
property  of  Mr.  Lewin  by  donatio  causa  mortis.  But  it  is  clear 
that  no  gift  was  intended  by  Mrs.  Lewin,  as  plainly  appears  by 
her  letter  to  the  officers  of  the  bank,  and  besides,  a  gift  of  this 
nature  must  be  made  in  contemplation  of  the  approach  of  death 
and  must  be  given  to  take  effect  only  in  case  the  donor  dies.  Ray- 
mond v.  Sellick,  10  Conn.,  480.  Nothing  of  this  kind  appears  in 
the  case. 

Again,  it  is  claimed  that  the  court  of  probate  for  the  district 
of  New  Haven  granted  letters  of  administration  on  the  estate  of 
Mr.  Lewin  as  domiciled  in  the  state  of  New  York;  and  it  is  in- 
sisted that  this  is  conclusive  on  the  subject.  But  the  judgment  of 
a  court  of  limited  jurisdiction  is  never  conclusive  of  a  jurisdic- 
tional question.  Its  jurisdiction  may  always  be  controverted. 
Sears  v.  Terry,  26  Conn.,  273 ;  Jochumsen  v.  Suffolk  Savings 
Bank,  3  Allen,  87 ;  2  Redfield  on  Wills,  49. 

We  advise  the  Superior  Court  that  the  administrator  of  the 
estate  of  Mrs.  Lewin  is  entitled  to  the  property. 

In  this  opinion  the  other  judges  concurred. 


COMMERCIAL  DOMICIL. 

DICEY  CONFLICT  OF  LAWS,  APPENDIX,  NOTE  4.* 
I.      PERSON'S    CHARACTER   DETERMINED  BY   DOMICIL. 
In  time  of  war  the  answer  to  the  question  whether  a  person 
is  or  is  not  to  be  considered  an  alien  enemy  is,  in  most  cases  at  any 
rate,  to  be  determined  by  reference,  not  to  his  nationality  or  alle- 
giance, but  to  his  trading  residence  or  commercial  domicil.    Every 

♦This  "note"  is  inserted  by  permission  of  the  American  Publisher  of  "Dicey  on  the 
Conflict  of  Laws." 


COMMERCIAL  DOMICIL.  65 

person  domiciled  in  a  state  engaged  in  hostilities  with  our  own, 
whether  he  is  a  born  subject  of  that  state  or  not,  is  to  be  regarded 
as  an  alien  enemy ;  and  ,speaking  generally,  a  person  domiciled  in 
a  neutral  country  is  to  be  regarded  as  for  commercial  purposes  a 
neutral,  even  though  he  be  in  fact  a  British  subject,  or  a  subject 
of  a  state  at  war  with  England.  "The  position  is  a  clear  one,  that 
"if  a  person  goes  into  a  foreign  country,  and  engages  in  trade 
"there,  he  is,  by  the  law  of  nations,  to  be  considered  a  merchant  of 
"that  country,  and  a  subject  for  all  civil  purposes,  whether  that 
"country  be  hostile  or  neutral ;  and  he  cannot  be  permitted  to  re- 
"tain  the  privileges  of  a  neutral  character  during  his  residence 
"and  occupation  in  an  enemy's  country."  A  person's  character, 
in  short,  as  a  friend  or  enemy,  is  in  time  of  war  to  be  determined 
by  what  is  termed  his  commercial  domicil.  Persons  who  are  com- 
mercially domiciled  in  a  neutral  country  are,  as  far  as  belligerents 
are  concerned,  neutrals ;  whilst,  on  the  other  hand,  persons  com- 
mercially domiciled  in  a  hostile  country  are,  whatever  their  na- 
tionality or  allegiance,  to  be  considered  enemies,  for  "persons  resi- 
dent in  a  country  carrying  on  trade,  by  which  both  they  and  the 
"country  were  benefited,  were  to  be  considered  as  the  subjects  of 
"that  country,  and  were  considered  so  by  the  law  of  nations,  at 
"least  so  far  as  by  that  law  to  subject  their  property  to  capture  by 
"a  country  at  war  with  that  in  which  they  lived."  Thus,  if  there 
be  a  war  between  England  and  France,  a  British  subject  residing 
and  trading  in  France  is  an  alien  enemy;  whilst  a  British  subject 
or  a  French  citizen  who  resides  and  carries  on  business  in  Portu- 
gal is,  even  though  he  may  trade  with  France,  a  neutral. 

II.      NATURE   OF   COMMERCIAL   DOMICIL. 

The  nature  of  the  trading  residence  or  commercial  domicil, 
which  determines  a  person's  friendly  or  hostile  character  in  time 
of  war,  may  be  made  clear  by  comparing  such  commercial  domicil 
with  the  domicil  properly  so  called,  which  is  referred  to  in  the 
body  of  this  treatise,  and  is,  in  this  Note,  termed  for  the  sake  of 
distinction  a  civil  domicil.  Each  domicil  is  a  kind  of  residence, 
each  bears  a  close  resemblance  to  the  other,  but  they  are  distin- 
guished by  marked  differences. 


66  PRIVATE   INTERNATIONAL   LAW. 

(A)  Resemblance  of  commercial  domicil  to  civil  domicil. — A 
trading  or  commercial  domicil  bears  so  close  a  resemblance  to  a 
civil  domicil  that  it  is  often  described  in  language  which  appears 
to  identify  the  two  kinds  of  domicil.  Thus  Arnould  writes  of  the 
domicil  which  determines  a  person's  character  in  time  of  war: 
"That  is  properly  the  domicil  of  a  person  where  he  has  his  true, 
"fixed,  permanent  home  and  principal  establishment,  in  which, 
"when  present,  he  has  the  intention  of  remaining  {animus  ma- 
"nendi),  and  from  which  he  is  never  absent  without  the  intention 
"of  returning  (animus  revertendi)  directly  he  shall  have  accom- 
plished the  purpose  for  which  he  left  it ;"  whilst  Duer  states  with 
regard  to  the  national  character  of  a  merchant:  "It  is  determined 
"solely  by  the  place  of  his  permanent  residence.  In  the  language 
"of  the  law,  it  is  fixed  by  his  domicil.  He  is  a  political  member 
"of  the  country  into  which  by  his  residence  and  business  he  is  in- 
corporated— a  subject  of  the  government  that  protects  him  in  his 
"pursuits — that  his  industry  contributes  to  support,  and  of  whose 
"national  resources  his  own  means  are  a  constituent  part."  Nor 
are  the  points  in  which  the  two  kinds  of  domicil  resemble  each 
other  hard  to  discern.  They  are  each  kinds  or  modes  of  residence. 
The  constituent  elements  of  each  are,  first,  "residence ;"  secondly, 
a  "purpose  or  intention"  (on  the  part  of  the  person  whose  domi- 
cil is  in  question)  "with  regard  to  residence."  In  spite,  however, 
of  the  terms  used  by  high  authorities,  and  of  the  undoubted  like- 
ness between  the  two  kinds  of  domicil,  they  are  different  in  essen- 
tial particulars. 

(B)  Differences  betueen  civil  and  commercial  domicil. — The 
fundamental  distinction  between  a  civil  domicil  and  a  commercial 
domicil  is  this :  A  civil  domicil  is  such  a  permanent  residence  in  a 
country  as  makes  that  country  a  person's  home,  and  renders  it, 
therefore,  reasonable  that  his  civil  rights  should  in  many  instances 
be  determined  by  the  laws  thereof.  A  commercial  domicil,  on  the 
other  hand,  is  such  a  residence  in  a  country  for  the  purpose  of 
trading  there  as  makes  a  person's  trade  or  business  contribute  to 
or  form  part  of  the  resources  of  such  country,  and  renders  it, 
therefore,  reasonable  that  his  hostile,  friendly,  or  neutral  character 
should  be  determined  by  reference  to  the  character  of  such  coun- 


COMMERCIAL,  DOMICIL.  67 

try.  When  a  person's  civil  domicil  is  in  question,  the  matter  to  be 
determined  is  whether  he  has  or  has  not  so  settled  in  a  given  coun- 
try as  to  have  made  it  his  home.  When  a  person's  commercial 
domicil  is  in  question,  the  matter  to  be  determined  is  whether  he 
is  or  is  not  residing  in  a  given  country  with  the  intention  of  con- 
tinuing to  trade  there.  From  this  fundamental  distinction  arise 
the  following  differences : — 

(i)  As  to  residence. — Residence  in  a  country  is  in  general 
Prima  facie  evidence  of  a  person  having  there  his  civil  domicil, 
but  it  is  only  prima  facie  evidence,  the  effect  of  which  may  be 
quite  got  rid  of  by  proof  that  a  person  has  never  lived  in  the  coun- 
try with  the  intention  of  making  it  his  permanent  home.  But 
residence  is  far  more  than  prima  facie  evidence  of  a  person's  com- 
mercial domicil.  In  time  of  war  a  man  is  taken  to  be  domiciled 
for  commercial  purposes  in  the  country  where  he  in  fact  resides, 
and,  if  he  is  to  escape  the  effect  of  such  presumption,  he  must 
prove  affirmatively  that  he  has  the  intention  of  not  continuing  to 
reside  in  such  country.  A  long  period  further  of  residence, 
which,  as  regards  civil  rights,  is  merely  evidence  of  domicil,  might, 
it  would  seem,  be  absolutely  conclusive  in  determining  national 
character  in  time  of  war. 

(2)  As  to  intention. — The  intention,  or  animus,  which,  in 
combination  with  residence,  constitutes  a  civil  domicil,  is  different 
from  the  intention  or  animus  which,  together  with  residence, 
makes  up  a  commercial  domicil. 

The  intention  which  goes  to  make  up  the  existence  of  a  civil 
domicil  is  the  present  intention  of  residing  permanently,  or  for  an 
indefinite  period,  in  a  given  country.  The  intention  which  goes 
to  make  up  the  existence  of  a  commercial  domicil  is  the  intention 
to  continue  residing  and  trading  in  a  given  country  for  the  present. 
The  former  is  an  intention  to  be  settled  in  a  country  and  make  it 
one's  home,  the  latter  is  an  intention  to  continue  residing  and 
trading  there.  Hence,  on  the  one  hand,  a  person  does  not  acquire 
a  civil  domicil  by  residence  in  a  country  for  a  definite  purpose  or 
period,  and  cannot  by  residence  in  one  country,  e.  g.,  France,  get 
rid  of  a  domicil  in  another,  e.  g.,  England,  if  he  retains  the  pur- 
pose of  ultimately  returning  to  England,  as  his  home :  while,  on 


68  PRIVATE   INTERNATIONAL  LAW. 

the  other  hand,  the  intention  "which  the  law  attributes  to  a  person 
'"residing  in  a  hostile  country,  is  not  disproved  by  evidence  that  he 
"contemplated  a  return  to  his  own  country  at  some  future  period. 
"If  the  period  of  his  return  is  wholly  uncertain — if  it  remains  in 
"doubt  at  what  time,  if  at  all,  he  will  be  able  to  accomplish  the  de- 
sign,— the  design,  however  seriously  entertained,  will  not  avail 
"to  refute  the  legal  presumption.  A  residence  for  an  indefinite 
"period  is,  in  the  judgment  of  law,  not  transitory,  but  permanent. 
"Even  when  the  party  has  a  fixed  intention  to  return  to  his  own 
"country  at  a  certain  period,  yet  if  a  long  interval  of  time — an 
"interval  not  of  months,  but  of  years — is  to  elapse  before  his  plan 
"of  removal  can  be  effected,  no  regard  will  be  had  to  an  intention 
"of  which  the  execution  is  so  long  deferred." 

D,  domiciled  in  England,  goes  to  British  India  with  the  full 
intention  of  residing  there  till  he  has  made  his  fortune  in  trade, 
and  of  then  returning  to  England,  where  he  has  his  domicil  of 
origin.  He  resides  in  India  for  twenty  years.  He  retains  his 
English  civil  domicil.  Suppose,  however,  that  D,  under  exactly 
similar  circumstances  in  every  other  respect,  takes  up  his  resi- 
dence not  in  British  India,  but  in  the  Portuguese  settlement  in 
India,  and  after  war  has  broken  out  between  England  and  Portu- 
gal, continues  to  reside  and  trade  in  the  Portuguese  settlement, 
though  still  retaining  his  intention  of  ultimately  returning  to  Eng- 
land.    D  thereupon  acquires  a  Portuguese  commercial  domicil. 

(3)  As  to  abandonment. — The  rules  as  to  abandonment  are 
different.  A  civil  domicil  once  acquired  can  be  changed  only  by 
complete  abandonment  in  fact  of  the  country  where  a  person  is 
domiciled.  The  intention  to  change,  even  if  accompanied  by  steps 
for  carrying  out  a  change,  will  not,  it  would  seem,  produce  a 
change  as  long  as  the  person  whose  domicil  is  in  question  con- 
tinues in  fact  to  reside  in  the  country  where  he  has  been  domiciled. 

A  commercial  domicil  in  time  of  war  can,  it  would  seem,  be 
changed,  under  some  circumstances,  by  the  intention  to  change  it, 
accompanied  by  steps  taken  for  the  purpose  of  effecting  a  change. 
"The  native  national  character,  that  has  been  lost,  or  partially  sus- 
pended, by  a  foreign  domicil,  easily  reverts.  The  circumstances, 
"by  which  it  may  be  restored,  are  much  fewer  and  slighter  than 


COMMERCIAL   DOMICIL.  69 

"those  that  were  originally  necessary  to  effect  its  change.  The 
"adventitious  character,  that  a  domicil  imposes,  ceases  with  the 
"residence  from  which  it  arose.  It  adheres  to  the  partv  no  longer 
"than  he  consents  to  bear  it.  It  is  true,  his  mere  intention  to  re- 
move— an  intention  not  manifested  by  overt  acts,  but  existing  se- 
cretly in  his  own  breast,  ...  is  not  sufficient  to  efface  the  char- 
'acter  that  his  domicil  impressed ;  something  more  than  mere 
"verbal  declarations,  some  solid  fact,  showing  that  the  party  is  in 
''the  act  of  withdrawing,  is  always  necessary  to  be  proved ;  still, 
"neither  his  actual  return  to  his  ozvn  country,  nor  even  his  actual 
"departure  from  the  territories  of  that  in  which  he  resided,  is  in- 
" dispensable." 

(4)  As  to  domicil  by  operation  of  law. — It  may  fairly  be 
doubted  whether  the  rules  as  to  domicil  by  operation  of  law,  e.  g. 
in  the  case  of  persons  who  have  in  fact  no  home,  or  of  dependent 
persons,  which  play  so  large  a  part  in  the  law  of  civil  domicil,  can 
be  without  considerable  limitations  applied  to  the  ascertainment 
of  commercial  domicil.  D,  for  example,  is  a  French  subject, 
whose  domicil  of  origin  is  English.  He  has  an  acquired  domicil 
in  France.  Both  France  and  America  declare  war  against  Eng- 
land. D  thereupon  leaves  France,  intending  to  settle  in  New 
York.  He  resumes  during  the  transit  from  one  country  to  an- 
other his  domicil  of  origin ;  but  it  can  hardly  be  supposed  that  he 
is  not  during  such  transit  an  alien  enemy.  D,  again,  is  an  infant, 
or  a  married  woman,  carrying  on  a  commercial  business  on  his  or 
her  own  account  in  France  during  a  war  with  England.  It  can 
hardly  be  maintained  that  the  fact  of  the  father  in  the  one  case,  or 
the  husband  in  the  other,  having  an  English  domicil  and  being 
resident  in  England  will  free  D  from  the  character  of  an  alien 
enemy. 

(5)  As  to  special  rules. — There  are  one  or  two  rules  as  to 
commercial  domicil  which  can  have  no  application  to  an  ordinary 
civil  domicil.  Thus,  according  to  American  decisions  at  least,  an 
American  citizen  (and  the  same  principle  would  perhaps  be  ap- 
plied by  English  Courts  to  British  subjects)  cannot,  by  emigration 
from  his  own  country  during  the  existence  of  hostilities,  acquire 
such  a  foreign  domicil    as  to  protect  his    trade  during    the  war 


70  PRIVATE   INTERNATIONAL   LAW. 

against  the  belligerent  claims  either  of  his  own  country  or  of  a 
hostile  power.  So,  again,  a  neutral  merchant  may,  at  any  time 
withdraw  his  property  and  funds  from  a  hostile  country,  and  such 
a  withdrawal  may  restore  him  to  his  neutral  domicil.  But  whether 
the  subject  of  a  belligerent  state  can,  after  the  outbreak  of  hos- 
tilities, withdraw  from  a  he  stile  state  so  as  to  escape  the  imputa- 
tion of  trade  with  the  enemy  is  doubtful.  If  the  withdrawal  can 
be  effected  at  all,  either  it  must  be  done  within  a  short  period  after 
the  outbreak  of  war,  or  any  delay  in  effecting  it  must  be  shown 
to  have  arisen  from  necessity  or  from  compulsion. 

III.      PERSON'S   CIVIL  NEED    NOT    COINCIDE   WITH  HIS   COM- 
MERCIAL   DOMICIL. 

From  the  distinctions  between  a  civil  and  a  commercial  domi- 
cil, the  conclusion  follows  that  a  person  may  have  a  civil  domicil 
in  one  country,  and,  at  the  same  time,  a  commercial  domicil  or 
residence  in  another.  Thus,  suppose  that  D's  domicil  of  origin 
is  English,  and  that  he  goes  to  France  and  sets  up  in  trade  there 
without  any  purpose  of  making  France  his  permanent  home,  but 
with  the  distinct  intention  of  returning  to  England  within  ten 
years.  He  clearly  retains  his  English  domicil  of  origin ;  and  the 
outbreak  of  a  war  between  France  and  England  does  not  of  itself 
affect  D's  civil  domicil. 

If  D  continues  to  reside  and  trade  in  France  after  the  out- 
break of  hostilities,  though  without  any  change  of  intention  as  to 
the  time  of  his  stay  in  France,  he  will  acquire  a  French  commer- 
cial domicil.  In  other  words,  he  will  have  a  civil  domicil  in  Eng- 
land and  a  commercial  domicil  in  France. 

Nor  is  this  fact  really  inconsistent  with  Rule  3,  that  no  person 
can,  at  the  same  time,  have  more  than  one  domicil.  It  only  illus- 
trates the  fact  constantly  dwelt  upon  in  this  treatise,  that  residence 
is  different  from  domicil,  and  that  a  person  while  domiciled  in  one 
country  may,  in  fact,  reside  in  another. 


DOMICIL   OF    MARRIED    WOMEN.  71 

DOMICIL  OF   MARRIED  WOMEN. 

MATTER  OF  FLORANCE,  54  HUN.  (N.  Y.)  328,  (1889). 

Appeal  from  an  order  of  the  surrogate  court  of  the  county  of 
New  York,  denying  a  motion  made  by  the  husband  of  Rosalie 
Florance,  deceased,  to  vacate  or  set  aside  the  probate  of  the  will 
of  the  deceased  or  to  modify  the  same,  which  order  was  entered 
April  24,  1889,  in  said  surrogate's  office. 

George  H.  Yeatnan,  for  the  appellants. 

Charles  h.  Miller,  for  the  executors,  respondents. 

Edward  W.  Sheldon,  for  the  United  States  Trust  Company, 
as  trustee  under  the  will. 

Meyer  Butzel,  special  guardian. 
Van  Brunt,  P.  J. : 

This  application  is  a  renewal  of  one  made  in  June,  1888,  pur- 
suant to  leave  duly  given. 

It  appears  from  the  papers  before  the  learned  surrogate  that 
the  petitioner  and  appellant  resides  in  the  city  of  Philadelphia, 
State  of  Pennsylvania,  and  that  he  was  the  husband  of  Rosalie 
Florance,  who  died  on  October  12,  1887,  in  Europe.  That  in 
November,  1887,  the  last  will  and  testament  of  said  Rosalie  was 
filed  for  probate  with  the  surrogate  of  New  York,  and  at  the  same 
time  a  petition  was  presented  alleging  that  she  had  been,  previous 
to  her  death,  a  resident  of  the  county  of  New  York.  A  citation 
was  duly  issued  to  and  served  upon  all  persons  entitled  to  notice, 
including  the  petitioner,  to  attend  the  probate  of  the  will.  That 
the  petitioner  neglected  to  appear  and  the  said  will  was  admitted 
to  probate  and  letters  testamentary  were  issued  thereon. 

The  petitioner  stated  in  his  petition  that  he  did  not  attend  the 
probate  of  the  will  because  he  did  not  suppose  that  any  of  his 
rights  would  be  affected  thereby,  and  that  within  a  week  or  so 
after  said  probate  the  petitioner  learned  that  said  will  had  been 
improperly  probated,  in  that  the  deceased  was  not  a  resident  of 
New  York  at  the  time  of  her  death,  and  he  was  advised  by  counsel 
that  steps  should  be  taken  to  modify  and  correct  said  probate. 
That  thereupon,  on  June  21,  1888,  a  petition  was  presented  to  the 
Surrogate's  Court  upon  which  a  citation  was  issued  and  such  pro- 


72  PRIVATE    INTERNATIONAL   LAW. 

ceeding  had,  that,  in  October,  1888,  the  motion  was  denied,  and 
that  pursuant  to  leave  granted,  the  petition  in  question  was  pre- 
sented in  December,  1888. 

It  further  appeared  that  tne  petitioner  and  said  Rosalie  were 
married  in  the  year  i860,  in  the  city  of  New  York,  where  she  was 
born  and  had  always  resided  up  to  the  time  of  her  marriage  to  the 
petitioner;  that  the  petitioner  and  his  said  wife  then  went  to  live 
in  Philadelphia,  and  resided  there  until  1873,  when  they  broke  up 
housekeeping  and  resided  in  various  places.  In  the  fall  of  1875, 
.he  petitioner  and  his  wife  finally  separated  from  one  another,  he 
making  his  home  in  Philadelphia,  and  she,  with  three  children,  in 
New  York,  she  taking  care  of  and  maintaining  them.  The  said 
Rosalie,  from  her  savings  of  some  property  left  her,  accumulated 
some  $60,000,  which  comprised  her  estate  at  her  death. 

The  petitioner  claims  that  as  no  legal  separation  had  taken 
place  between  them,  although  they  had  lived  apart  for  twelve 
years,  the  residence  of  his  wife  was  that  of  her  husband,  viz., 
Pennsylvania,  and  that,  by  the  laws  of  said  State,  he  was  entitled 
to  share  in  her  estate,  which  would  not  be  the  case  were  she  a  resi- 
dent of  New  York. 

The  whole  claim  of  the  plaintiff  is  based  upon  the  old  rule 
that  a  woman  by  marriage  acquires  the  domicile  of  her  husband 
and  changes  it  with  him.  It  is  admitted  that  a  wife  may  procure 
a  separate  domicile  for  purposes  of  divorce,  but  it  seems  to  be 
claimed  that  such  domicile  cannot  be  procured  for  any  other  pur- 
pose. The  old  rule  in  reference  to  a  married  woman's  domicile 
cannot,  certainly,  prevail  in  view  of  the  rights  which  are  recog- 
nized to  be  hers  by  the  statutes. 

The  property  relations  between  husband  and  wife  have  been 
entirely  changed  since  the  rule  in  question  has  obtained,  and  the 
reasons  for  the  rule  no  longer  exist.  The  wife  is  now  a  distinct 
legal  entity,  having  in  the  disposition  of  her  property  all  the  rights, 
and  even  more  than  a  husband  has  ever  possessed,  and  the  hus- 
band has  no  control  whatever  over  her  movements  or  her  disposi- 
tion of  her  property.  In  the  case  at  bar  it  appears  that  in  1875 
the  petitioner  and  his  wife  agreed  to  separate,  she  to  take  their 
children  and  maintain  them.     They    did    separate,  he    going   to 


DOMICIL   OF    INFANTS.  73 

Philadelphia  and  she  living  in  Xew  York,  which  had  been  her 
home  before  marriage,  and  supporting  their  children  from  her 
own  means.  There  is  no  pretense  that  the  petitioner  ever  con 
tributed  a  cent  to  the  support  of  his  wife  or  their  children  since 
1875,  or  offered  to  do  so,  and  the  best  that  he  can  say  in  his  peti- 
tion is  that  he  never  refused  to  provide  a  home  for  his  said  wife 
or  her  children  in  the  city  of  Philadelphia.  Probably  he  was 
never  asked  to  do  so,  and,  consequently,  did  not  refuse,  but  he  no- 
where alleges  that  he  offered  to  provide  a  home  for  his  wife  and 
children  anywhere,  and  probably  he  did  not. 

They  had  agreed  to  live  separate,  and  she  had  agreed  to  sup- 
port herself  and  her  children.  She  then,  by  and  with  his  consent, 
acquired  a  domicile  in  New  York,  made  that  her  home  and  that  of 
her  children,  and  certainly  if  she  was  enough  of  a  resident  to  insti- 
tute divorce  proceedings,  as  is  conceded,  she  is  enough  of  a  resi- 
dent to  leave  her  property  to  her  children  and  to  be  protected  from 
the  claims  of  a  husband  with  whom  she  has  not  lived  for  twelve 
years,  and  who  has  not.  during  that  time,  either  contributed  or 
offered  to  contribute  to  her  support  or  to  that  of  their  children  and 
who  desires  now,  under  a  legal  fiction,  to  take  away  from  his  own 
children  a  portion  of  their  mother's  inheritance. 

The  motion  was  decided  correctly  by  the  learned  surrogate, 
and  the  order  appealed  from  should  be  affirmed,  with  costs  to  each 
of  the  parties  appearing  as  respondents. 

Daniels  and  Barrett,  JJ.,  concurred. 

Order  affirmed,  with  costs  to  each  of  the  parties  appearing  as 
respondents. 


DOMICIL  OF  INFANTS. 

IN  RE  VANCE,  92  CAL.  195,  (1891). 

Appeal  from  an  order  of  the    Superior   Court   of   Sonoma 
County  granting  letters1  of  guardianship. 
The  facts  are  stated  in  the  opinion. 
IV.  H.  Barrows,  and  Barham  &  Bolton,  for  Appellant. 
/.  R.  Leppo,  for  Respondent. 
Belcher,  C. — On  the  14th  of  October,  1890,  Mrs.  Mary  L. 


74  PRIVATE   INTERNATIONAL   LAW. 

P.  Mount  joy  filed  in  the  superior  court  of  Sonoma  County  her 
petition  praying  that  she  be  appointed  guardian  of  the  persons  of 
Robbin  and  Stewart  Vance.  She  stated  in  the  petition  that  Rob- 
bin  was  a  little  girl  about  eight  years  old,  and  Stewart  a  little  boy 
about  five  years  old ;  that  they  were  the  children  of  John  B.  Vance 
and  Louise  F.  Vance,  but  that  the  mother  was  dead ;  that  she  was 
the  grandmother  of  the  children,  and  that  they  had  been  living 
with  her  at  Santa  Rosa,  Sonoma  County,  and  in  her  care  and  cus- 
tody, for  several  years ;  and  that  the  father  was  not  a  fit  or  proper 
person  to  have  the  care  and  custody  of  them. 

The  father  filed  an  answer  to  the  petition,  and  denied  that  he 
was  not  a  fit  and  proper  person  to  have  the  care  and  custody  of  the 
children;  denied  that  it  was  necessary  that  a  guardian  of  the 
persons  of  the  children  should  be  appointed,  inasmuch  as  he  was 
their  legal  guardian ;  and  alleged  that  the  children  were  then,  and 
had  been  since  prior  to  the  filing  of  the  petition,  inhabitants  and 
residents  of  the  city  and  county  of  San  Francisco. 

After  a  hearing,  the  court  found,  among  other  things,  that 
the  children  had  been  residents  of  Sonoma  County  for  more  than 
four  years  last  past,  living  with  their  grandmother,  the  petitioner, 
who  had  sole  care  and  custody  of  them  during  that  time ;  that  on 
the  twelfth  day  of  October,  1890,  the  father,  without  the  knowl- 
edge or  consent  and  against  the  wishes  of  the  petitioner,  carried 
them  away  to  San  Francisco,  where  he  resided;  that  the  father 
deserted  and  abandoned  the  children  more  than  three  years  pre- 
vious to  the  time  of  his  taking  them  from  the  custody  of  their 
grandmother ;  that  he  had  not  provided  for  their  support  for  more 
than  four  years,  and  that  his  reputation  was  bad ;  and  that  the  pe- 
titioner was  a  fit  and  proper  person  to  have  the  custody  of  them. 

An  order  was  accordingly  entered  that  letters  of  guardianship 
be  issued  to  the  grandmother  as  prayed  for,  and  from  this  order 
the  father  appeals. 

The  principal  contention  of  appellant  is,  that  the  court  had  no 
jurisdiction  of  the  case,  because,  at  the  time  the  petition  was  filed, 
the  children  were  not  inhabitants  or  residents  of  Sonoma  County, 
and  hence  that  the  order  was  void  and  should  be  reversed. 

The  evidence  on  which  the  order  was  based  was  as  follows : 


.     DOMICIL   OF    INFANTS.  75 

The  petitioner  introduced  evidence  showing  that  the  mother  of 
the  children  was  her  daughter,  and  had  been  dead  about  four 
years;  "that  several  years  prior  to  the  death  of  their  mother,  the 
mother  and  the  children  lived  with  petitioner,  and  were  wholly 
supported  by  the  petitioner ;  that  after  the  death  of  their  mother, 
the  children  continued  to  reside  with  the  petitioner  and  to  be  sup- 
ported by  her;  that  the  father,  Vance,  has  not  provided  for  the 
support  of  the  children  since  the  death  of  the  mother;  that  at 
various  times  since  the  death  of  the  mother,  Vance,  the  father,  has 
expressed  and  declared  to  the  petitioner  that  he  was  willing  that 
she  have  the  care  and  custody  of  the  children;  that  at  various 
times  since  the  death  of  the  mother,  Vance  had  expressed  and  de- 
clared his  intention  of  never  reclaiming  or  taking  the  custody  of 
the  children  from  the  petitioner ;  .  .  .  that  the  reputation  of  J. 
B.  Vance  for  sobriety,  industry,  and  morality  was  and  is  bad,  and 
has  been  for  more  than  four  years  last  past,  and  that  he  spent  his 
earnings  and  money  for  liquors,  on  women,  and  general  dissipa- 
tion ;  that  up  to  about  one  year  ago,  Vance,  the  father,  resided  in 
Santa  Rosa,  Sonoma  County ;  that  about  one  year  ago  he  went  to 
San  Francisco,  and  since  that  time  has  resided  in  San  Francisco ; 
that  after  going  to  San  Francisco  to  reside,  he  married,  and  for 
some  time  previous  to  the  trial  has  lived  with  his  wife  in  San 
Francisco ;  that  on  the  twelfth  day  of  October,  1890,  Vance  came  to 
Santa  Rosa,  and  went  to  the  home  of  the  petitioner,  where  the  chil- 
dren were,  and  represented  to  the  petitioner  that  he  desired  to  take 
the  children  down  town  to  get  some  candy,  whereupon  petitioner 
consented,  and  he  took  the  children  and  went  away  with  them,  as 
the  grandmother  understood,  to  take  them  down  town  and  get 
them  candy ;  that  Vance  then  took  them  to  San  Francisco  without 
the  knowledge  and  consent  of  the  grandmother ;  that  they  were  in 
San  Francisco  at  the  time  these  proceedings  were  commenced, 
and  up  to  the  trial  thereof ;  that  petitioner  is  able  to  maintain  and 
care  for  the  children." 

The  father  then  offered  testimony  showing  that  his  residence 
had  been  in  San  Francisco  for  the  year  last  past,  and  was  at  the 
time  he  took  the  children  there,  and  "that  his  present  wife,  Mrs. 
J.  B.  Vance,  had  means  with  which  to  support  and  care  for  the 
children,  and  was  desirous  of  caring  for  and  supporting  them." 


76  PRIVATE   INTERNATIONAL   LAW. 

In  view  of  this  evidence,  we  cannot  say  that  the  finding  that 
the  father  had  abandoned  the  children  was  not  justified.  He  had 
left  them  for  years  to  be  supported  and  cared  for  by  their  grand- 
mother, and  had  at  various  times  declared  his  intention  never  to 
leclaim  them.  And  that  he  recognized  the  grandmother's  right 
to  their  custody  will  be  presumed  from  the  fact  that  he  resorted  to 
fraudulent  means  to  get  them  away  from  her.  If  he  had  consid- 
ered that  he  had  a  right  at  any  time  to  take  them  away,  pre- 
sumably he  would  have  asserted  his  right  boldly,  and  no  misrepre- 
sentations or  deceit  would  have  been  used  to  accomplish  his  pur- 
pose. 

The  general  rule  is,  that  "the  residence  of  the  father  during 
his  life  ....  is  the  residence  of  the  unmarried  minor  child." 
(Pol.  Code,  sec.  52,  subd.  4.)  But  this  rule  does  not  apply  when 
the  child  is  under  the  age  of  fourteen  years,  and  has  been  aban- 
doned by  the  father.  In  such  case  he  forfeits  his  guardianship  of 
the  child,  and  can  no  longer  claim  its  custody.  (Stats.  1873-74, 
p.  297.)  If,  then,  these  children  had  been  abandoned  by  their 
father,  as  the  court  below  found,  their  residence  was  in  Sonoma 
County,  and  it  was  not  changed  by  their  surreptitious  removal  to 
San  Francisco.  The  questions  involved  in  the  case  were  all  ques- 
tions of  fact,  which  the  court  below  was  called  upon  and  had  a 
right  to  determine  (In  re  Danneker,  67  Cal.  643),  and  we  see  no 
good  ground  for  diturbing  its  conclusions.  We  ad/ise  that  the 
order  be  affirmed. 

Fitzgerald,  C,  concurred. 

The  Court. — For  the  reasons  given  in  the  foregoing  opinion, 
the  order  is  affirmed. 


DOMICIL  OF  INSANE  PERSONS. 
PITTSFIELD  v.  DETROIT,  53  ME.  442,  (1866). 
On  facts  agreed. 

Assumpsit  to  recover  the  amount  paid  for  the  support  of  an 
insane  pauper  in  the  insane  hospital,  from  August  31,  1864,  to 
Feb.  28,  1865. 

The  pauper  was  a  single  person,  twenty-one  years  of  age,  and 


DOMICIL   OF   INSANE   PERSONS.  77 

once  had  his  settlement  in  Detroit.  Nov.,  1857,  he  removed  to 
Pittsfield,  where  he  continued  to  reside  until  Nov.,  1859,  when, 
upon  due  examination,  being  found  insane,  he  was  sent  to  the  in- 
sane hospital,  in  Augusta,  where  he  remained  until  Feb.,  1865, 
when  he  died.  The  town  of  Pittsfield,  being  liable  in  the  first 
instance,  paid  its  legal  proportion  of  his  support  in  the  hospital, 
from  Aug.,  1864  to  Feb.,  1865,  his  friends  having  paid  the  ex- 
penses which  accrued  prior  to  that  time,  the  State  also  paying  one 
dollar  per  week.  The  plaintiffs  notified  the  defendants  who  an- 
swered denying  settlement. 

The  Court  was  to  enter  nonsuit  or  default  as  the  legal  rights 
of  the  parties  should  require. 

George  W .  Whitney,  for  the  plaintiffs. 

1 .  The  pauper  did  not  have  his  home  in  Pittsfield  five  succes- 
sive years.  When  he  went  to  the  hospital  he  had  no  intention  of 
1  eturning,  being  incapable  of  having  any  intention.  Although  in- 
sanity will  not  prevent  the  acquisition  of  a  settlement  by  the  sixth 
mode,  as  by  Machias  v.  E.  Machias,  33  Maine,  427;  New  Vine- 
yard v.  Harp  swell,  33  Maine,  193 ;  Gardiner  v.  Farmington,  45 
Maine,  537,  still  it  is  evident  that  the  residence  of  an  insane  per- 
son must  be  actual  and  not  constructive.  Where  an  insane  person 
actually  dwells  there  he  has  his  residence. 

He  was  in  the  hospital  against  his  will,  and  while  there  was 
incapable  of  gaining  settlement  anywhere. 

2.  State  paid  $1  per  week  after  Nov.,  1861.  Such  payment 
prevented  Jenkins  from  gaining  a  settlement. 

•S\  5".  Hackett,  for  the  defendants. 

Kent,  J. — The  pauper  commenced  "to  dwell  and  have  his 
home"  in  Pittsfield,  but,  before  he  had  so  dwelt  for  five  successive 
years,  he  was,  on  due  proceedings,  "committed  to  the  insane  hos- 
pital, by  the  selectmen  of  said  town,  as  an  insane  person."  He  re- 
mained, under  this  commitment,  in  the  hospital  until  he  died.  The 
time  he  remained  in  the  hospital  added  to  the  time  he  had  resided 
in  Pittsfield,  before  entering  it,  made  up  more  than  five  years. 
The  question  is,  whether  his  home  was,  in  legal  contemplation,  in 
that  town  whilst  he  was  in  the  hospital  as  an  insane  man,  or  did 
he  cease  to  have  a  continuing  home  there  after  his  removal  to  that 
institution  ? 


78  PRIVATE   INTERNATIONAL   LAW. 

Certain  general  principles  have  been  established  by  the  deci- 
sions in  our  own  Court,  bearing  more  or  less  directly  on  this  ques- 
tion. 

When  a  residence  is  once  established,  an  absence  for  a  longer 
or  shorter  period  for  temporary  purposes  does  not  change  such 
residence.  To  break  up  a  residence  once  fixed,  there  must  be  a 
departure  with  an  intention  to  abandon,  or  without  an  intention 
to  return  after  a  temporary  absence.  There  are  limitations  and 
qualifications  to  be  found  in  some  of  the  cases,  but  in  all  of  them 
the  intention  of  the  party  is  the  controlling  fact. 

The  objection  made  by  the  plaintiffs'  counsel  is,  that,  as  the 
pauper  was  actually  absent,  he  had  no  intention  to  return,  because, 
being  insane,  he  could  have  no  intention  on  the  subject.  But  an- 
other and  preliminary  intention  is  recognized  by  the  law,  viz.,  an 
intention  to  remove,  and  to  abandon  the  residence.  An  insane 
man  could  no  more  have  this  intention,  than  he  could  have  an  in- 
tention to  return. 

In  the  case,  as  stated,  this  insane  man  did  not  even  volun- 
tarily remove.  Without  any  assent  or  action  on  his  part  he  was 
removed,  by  the  action  of  the  municipal  officers  of  the  town,  to  the 
hospital.  It  has  been  decided  that  he  did  not  gain  a  residence  in 
Augusta.  Smithfield  v.  Belgrade,  19  Maine,  387;  Yarmouth  v. 
N.  Yarmouth,  44  Maine,  352. 

In  the  absence  of  all  other  facts,  can  a  person,  detained  in  the 
insane  hospital,  under  the  provisions  of  the  law,  be  considered  as 
having  abandoned  his  home,  or  must  he  be  considered  as  tem- 
porarily absent,  and  as  still  retaining  his  home  where  it  was  estab- 
lished when  he  was  removed  ? 

No  one  would  probably  raise  any  question  in  the  case  of  a 
sane  man,  who  should  become  a  patient  in  a  general  hospital  in 
another  town  or  State,  or  in  the  case  of  a  convict,  committed  to 
the  State's  prison,  or  county  jail.  A  person  has  no  residence  in  a 
public  institution,  as  distinguished  from  a  residence  in  some  town. 
Granby  v.  Amherst,  7  Mass.,  1 ;  Adams  v.  Wiscasset,  5  Mass.,  328. 

If  this  pauper  had  recovered  and  returned  to  his  home,  before 
receiving  any  supplies  as  a  pauper,  could  any  one  question  his 
light  to  vote,  at  an  election  held  within  three  months  after  his  re- 


DOMICIL  OF   INSANE   PERSONS.  79 

turn?  If  it  could  be  rightly  questioned,  then  every  patient,  wh«: 
is  sent  to  the  hospital,  leaving  a  home  and  family,  would  lose  his 
residence,  and  be  remitted  to  a  new  commencing  domicil  upon  his 
recovery  and  return  to  his  home. 

It  has  been  settled,  that  a  person  becoming  insane  may  gain 
a  settlement  by  a  residence  commenced  when  sane,  and  continued 
for  five  years.  Machias  v.  East  Machias,  33  Maine.  427;  Gardi- 
ner v.  Farmington,  45  Maine,  537.  Having  commenced  a  resi 
dence  when  sane,  it  continues  until  abandoned  or  legally  changed. 
We  do  not  think  that  a  person  insane,  sent  by  the  officers  of  his 
town  to  the  insane  hospital,  as  a  patient,  thereby  loses  his  residence 
and  home  before  established  in  the  town.  It  is  worthy  of  con- 
sideration, although  perhaps  it  does  not  alter  the  principle,  that  the 
establishment  of  the  opposite  doctrine  would  offer  some  tempta- 
tion to  town  officers  to  send  doubtful  cases  to  the  hospital,  to  pre- 
vent the  gaining  of  a  settlement  by  a  person  likely  to  become  a 
pauper. 

There  is  another  point  made  by  the  counsel  for  the  plaintiffs, 
viz., — that  the  State  having  paid  one  dollar  per  week  for  a  part  of 
the  time  included  in  the  five  years,  that  payment  must  be  consid- 
ered as  supplies  to  Jenkins  as  a  pauper  within  the  statute.  This 
proposition  cannot  be  sustained.  The  statute,  by  virtue  of  which 
this  payment  by  the  State  was  made,  (R.  S.,  c.  143,  sec.  20,)  ex- 
pressly provides  that  such  aid  shall  not  be  considered  as  supplies 
to  a  pauper.  And  further,  a  person  is  to  be  considered  as  re- 
ceiving supplies  as  a  pauper,  within  the  meaning  of  rule  6th,  c. 
24,  sec.  1,  only  when  he  receives  such  supplies  from  the  town 
where  he  has  his  settlement,  or  where  he  is  found  in  distress. 
Opinion  of  Justices,  7  Maine,  497 ;  same  in  Mass.,  1 1  Pick.,  540, 
and  1  Met.,  572;  Veazie  v.  China,  50  Maine,  518;  Boston  v.  West- 
port,  12  Pick.,  16.  Plaintiffs  nonsuit..  . 

Appleton,  C.  J.,  Walton,  Dickerson,  Barrows,  Dan- 
forth  and  Tapley,  JJ.,  concurred. 


80  PRIVATE  INTERNATIONAL   LAW. 

DOMICIL  OF  APPRENTICES. 
MADDOX  v.  THE  STATE,  32  IND.  Ill,  (1869). 

Appeal  irom  the  Montgomery  Common  Pleas. 

Gregory,  J. — Information  against  the  appellant  for  illegal 
voting.  It  was  charged  that  the  appellant  had  not  been  a  resident 
of  the  State  for  six  months  preceding  the  election  at  which  he 
voted.  The  defendant  pleaded  not  guilty.  The  case  was  sub- 
mitted to  the  court ;  finding  guilty ;  motion  for  a  new  trial  over- 
ruled. The  evidence  shows  that  the  defendant,  when  about  nine 
years  old,  was  apprenticed  to  one  Miller,  a  resident  of  Montgom- 
ery county;  that  at  that  time  he  had  neither  father  nor  mother; 
that  he  made  his  home  at  Miller's  until  he  was  about  nineteen,  at 
which  time  he  left,  to  go  to  Attica,  in  this  State,  where  he  fell  in 
with  a  man  going  to  Iowa,  to  whom  he  engaged  himself  as  an  as- 
sistant, in  consideration  of  having  his  expenses  paid  to  Iowa.  He 
wrote  letters  to  Miller,  saying  that  he  was  going  to  Iowa  to  see  the 
country,  and  that  he  intended  to  return  as  soon  as  he  had  accom- 
plished that  object.  He  remained  in  Iowa  about  three  years. 
Soon  after  he  came  of  age,  he  wrote  to  Miller,  that  as  soon  as  he 
could  get  money  enough  to  pay  his  expenses,  he  would  return 
home.  Whilst  in  Iowa,  he  worked  for  farmers  on  their  farms, 
at  different  places.  He  said  to  a  witness,  after  his  return  to  this 
State,  that  he  did  not  expect  to  remain.  The  court  below,  as  we 
are  informed  by  the  bill  of  exceptions,  found  the  defendant  guilty 
on  the  ground  that,  being  a  minor  during  his  stay  with  Miller,  he 
could  not  gain  a  voting  residence. 

The  residence  of  Miller,  the  master,  was  the  residence  of  his 
apprentice,  the  appellant,  for  every  purpose  known  to  the  law, 
and,  whilst  a  minor,  the  apprentice  could  not  by  leaving  his  mas- 
ter and  going  to  another  state  change  that  residence.  But  after 
the  defendant  arrived  at  full  age,  he  could  elect  to  change  his  resi- 
dence, and  whether  he  did  or  not  in  this  case  depended  on  his  in- 
tention. If  it  was  the  intention  of  the  appellant  to  return  to  this 
State,  and  he  was  only  prevented  from  doing  so  by  the  lack  of 
means  to  pay  his  expenses,  and  he  did  in  fact  return  in  accordance 
with    his    intention,   then    he   never   lost   his    residence    in    this 


DOMICIL    OF    SAILORS.  81 

state,  although  it  was  not  his  intention  to  remain  here  per- 
manently. A  mere  intention,  unaccompanied  by  a  removal,  will 
not  lose  a  man  his  residence.  The  defendant  never  having  act- 
ually left  this  State  with  an  intention  to  change  his  residence,  he 
was  still  a  resident ;  and  it  took  something  more  than  a  mere  inten- 
tion as  to  his  future  course  to  lose  that  residence. 

The  court  erred  in  overruling  the  motion  for  a  new  trial. 

Judgment  reversed ;  cause  remanded  for  a  new  trial,  and  for 
further  proceedings. 

L.  Wallace,  for  appellant. 

D.  E.  Williamson,  Attorney-General,  for  the  State. 


DOMICIL  OF   SAILORS. 
BANGS  v.  BREWSTER,  111  MASS.  382,  (1873). 

Contract  to  recover  the  amount  of  a  tax  assessed  by  the  de- 
fendants on  the  plaintiff,  for  the  year  1869,  and  paid  by  him  under 
protest.  At  the  trial  in  the  Superior  Court,  before  Brigham,  C. 
J.  the  following  facts  appeared : 

The  plaintiff  was  born  in  Brewster,  and  continued  to  reside 
there  until  1867.  He  was  a  shipmaster,  and  arrived  at  Brewster 
from  a  voyage  in  July,  1867.  In  the  following  October,  he  be- 
came engaged  to  marry  a  woman  who  resided  in  Orleans,  and  pre- 
vious to  the  engagement  and  until  the  marriage  he  made  tempo- 
rary visits  to  her  in  Orleans.  In  November  he  married  her  in 
Chelsea,  went  from  Chelsea  with  his  wife  on  November  12  on 
board  his  ship  which  lay  at  Boston,  and  thence  to  sea,  first  to  San 
Francisco,  and  then  to  Liverpool.  On  his  arrival  in  Liverpool,  in 
December,  1868,  he  sent  his  wife,  who  was  expecting  to  be  con- 
fined, to  her  father's  house  in  Orleans.  She  arrived  there  in  Feb- 
ruary, 1869,  and  the  plaintiff  himself  arrived  in  port  and  went  to 
Orleans  in  the  July  following.  He  and  his  wife  boarded  at  her 
father's  about  one  month,  and  then  went  to  Chelsea,  where  he  es- 
tablished himself. 

The  plaintiff  testified  "that  on  his  arrival  home  in  Brewster, 
in  1867,  he  found  his  father  dead,  his    father's  house,  where   he 


82  PRIVATE   INTERNATIONAL   LAW. 

made  his  home  when  ashore,  burned,  and  his  friends  scattered ; 
that  having  children,  but  no  wife,  he  determined  to  abandon  his 
domicil  in  Brewster,  and  toldjone  of  the  assessors  of  Brewster 
that  he  must  not  tax  him  again ;  and  that,  upon  his  engagement  to 
be  married,  he  determined  to  make  Orleans  his  home,  and  con- 
tinued in  that  determination  until  after  May  I,  1869."  The  de- 
fendants introduced  evidence  tending  to  contradict  the  plaintiff, 
and  to  show  that  he  did  not  intend  to  make  Orleans  his  home ;  and 
they  contended  that  even  if  the  jury  should  be  satisfied  that  the 
plaintiff  intended  to  make  Orleans  his  home,  as  he  testified,  he  had 
not  shown  such  a  personal  presence  in  Orleans  as  would  authorize 
the  jury  to  find  that  he  acquired  a  domicil  there. 

The  defendant  asked  the  judge  to  instruct  the  jury  as  fol- 
lows :  "If  the  plaintiff  only  went  to  Orleans  for  temporary  visits 
to  his  intended  wife,  previous  to  November,  1867,  when  he  went 
to  sea,  his  subsequent  sending  of  his  wife  to  Orleans,  where  she 
boarded  at  her  father's  house,  the  plaintiff  himself  not  going  there 
until  after  May  1,  would  not  justify  the  jury  in  finding  a  change 
of  domicil  to  Orleans."  "The  plaintiff  would  not  lose  his  resi- 
dence in  Brewster  until  he  had  gone  to  Orleans  with  a  fixed  pur- 
pose to  make  that  his  home." 

The  judge  declined  so  to  instruct  the  jury,  and  instructed 
them  as  follows:  "The  facts  alone  considered,  that  the  plaintiff 
only  went  to  Orleans  for  temporary  visits  to  his  intended  wife, 
previous  to  November,  1867,  when"  he  went  to  sea,  and  subse- 
quently sent  his  wife  to  Orleans,  where  she  boarded  at  her  father's 
house,  the  plaintiff  himself  not  going  there  until  after  May  1, 
would  not  justify  the  jury  in  finding  a  change  of  domicil  to  Or- 
leans, but  these  facts  are  to  be  considered  as  qualified  or  explained 
by  the  condition  of  his  father's  homestead,  and  of  his  family  when 
he  arrived  at  Brewster,  his  intentions  then  formed,  his  subsequent 
engagement  to  marry,  the  character  of  his  visits  to  Orleans  be- 
tween October  1  and  his  marriage,  and  his  occupation  as  master 
of  a  ship.  The  plaintiff,  having  his  home  for  the  purpose  of  taxa- 
tion in  1867  in  Brewster,  retained  that  home  until  he  left  Brewster, 
intending  not  to  return  there  to  reside,  and  went  to  Orleans  or 
some  other  town  with  an  intent  to  have  his  home  there  for  a  defi- 


DOMICIL    OF    SAILORS.  83 

nite  or  indefinite  time,  and  his  domicil  would  then  be  established 
in  Orleans,  or  such  other  town,  notwithstanding  that  while  he 
thus  resided  in  Orleans,  or  such  other  town,  he  was  doubtful 
whether  he  might  not,  at  a  future  time,  return  to  Brewster,  or  go 
to  some  other  town,  and  make  his  home  there." 

The  defendant  also  asked  the  judge  to  instruct  the  jury  that 
the  plaintiff  had  not  shown  such  a  personal  presence  in  Orleans 
as  the  law  required  in  order  to  effect  a  change  of  domicil,  but  the 
judge  refused  so  to  instruct  them. 

The  judge,  against  the  defendants'  objection,  submitted  the 
case  to  the  jury  upon  the  following  questions,  and  instructed  them 
that  they  should  find  for  the  plaintiff  if  they  should  answer  either 
question  in  the  affirmative,  i.  "At  the  time  when  the  plaintiff 
went  to  sea,  November,  12,  1867,  did  he  then  definitely  intend  to 
make  Orleans  his  home?"  2.  "When  the  plaintiff  sent  his  wife, 
in  December,  1868,  to  Orleans,  was  it  in  pursuance  of  an  intent  to 
make  Orleans  his  home?" 

The  jury  answered  both  the  questions  in  the  affirmative;  a 
verdict  was  returned  for  the  plaintiff ;  and  the  defendants  alleged 
exceptions. 

G.  A.  King,  (H.  P.  Harriman  with  him,)  for  the  defendants. 

/.  Higgins,  for  the  plaintiff. 

MORTON,  J. — The  question  at  the  trial  was  whether  the  plain- 
tiff had  on  May  1,  1869,  acquired  a  domicil  in  Orleans.  There  is 
no  doubt  as  to  the  rule  of  law  that  the  plaintiff's  domicil  of  origin 
in  Brewster  adhered  to  him  until  he  had  acquired  a  domicil  some- 
where else,  and  that  in  order  to  effect  a  change  of  domicil  he  must 
not  only  have  had  the  intent  to  make  his  home  in  some  other  town, 
but  he  must  in  fact  have  made  his  home  there.  The  intent  and 
the  act  must  concur,  and  until  the  intent  was  consummated  by  an 
actual  removal  of  his  home,  no  change  of  domicil  was  effected. 
Whitney  v.  Sherborn,  12  Allen,  ill.    Camoe  v.  Freetown,  9  Gray, 

357- 

The  question  is  as  to  the  application  of  this  rule  to  the  facts 
of  this  case.  The  plaintiff  was  a  shipmaster,  most  of  whose  time 
was  spent  at  sea.  He  went  to  sea  in  November,  1867,  taking  his 
wife  with  him,  and  in  December,  1868,  he  sent  his  wife  to  Orleans, 


84  PRIVATE   INTERNATIONAL  LAW. 

and  she  arrived  there  in  February,  1869.  He  did  not  arrive  at 
Orleans  until  July,  1869,  so  that  he  was  not  personally  present  in 
Orleans  on  May  1,  1869.  The  special  findings  of  the  jury  settle 
conclusicely  that  when  he  went  to  sea  in  November,  1867,  he  had 
the  definite  intent  to  make  Orleans  his  home,  and  that  in  Decem- 
ber, 1868,  he  sent  his  wife  to  Orleans  in  pursuance  of  that  intent. 
We  think  the  jury  were  justified  in  finding  that  his  domicil  was  in 
Orleans  on  the  first  of  May. 

By  sending  his  wife  to  Orleans  with  the  intent  to  make  it  his 
home,  he  thereby  changed  his  domicil.  The  fact  of  removal  and 
the  intent  concurred.  Although  he  was  not  personally  present, 
he  established  his  home  there  from  the  time  of  his  wife's  arrival. 
We  think  the  learned  judge  who  presided  at  the  trial  rightly -re- 
fused to  rule,  as  requested,  that  the  plaintiff  had  not  shown  such 
a  personal  presence  in  Orleans  as  the  iaw  required  in  order  to 
effect  a  change  of  domicil,  and  that  the  instructions  given  upon 
this  subject,  when  applied  to  the  facts  of  the  case,  were  correct. 

The  defendants  object  that  the  instruction  that  the  jury 
should  find  for  the  plaintiff  if  they  answered  either  of  the  ques- 
tions submitted  to  them  in  the  affirmative,  was  erroneous,  upon 
the  ground  that  it  required  the  jury  to  find  a  change  of  domicil 
from  proof  of  an  intention  to  remove,  without  an  actual  removal. 
We  do  not  deem  it  necessary  to  consider  whether  this  objection  is 
founded  upon  a  just  construction  of  the  bill  of  exceptions  taken  as 
a  whole,  because  the  finding  of  the  jury  upon  the  second  question 
renders  the  first  immaterial.  This  finding  settles  that  the  plaintiff 
sent  his  wife  to  Orleans  in  pursuance  of  the  intent  then  entertained 
to  make  it  his  home ;  and  the  question  as  to  his  intent  at  an  earlier 
date,  and  its  effect,  becomes  of  no  consequence  to  the  rights  of  the 
parties  in  this  suit.  Exceptions  overruled. 


DOMICIL   OF    STUDENTS.  85 

DOMICIL  OF  STUDENTS. 
VANDERPOEL  v.  O'HANLON,  53  IOWA  246,  (1880). 

Appeal  from  Johnson  Circuit  Court. 
Tuesday,  April  6. 

The  petition  states  that  the  plaintiff,  in  March,  1878,  was  a 
"legal  voter  and  elector,"  and  that  being  such  he  was  entitled  to 
vote  in  a  certain  ward  in  Iowa  City,  in  Johnson  county,  at  an  elec- 
tion then  being  held.  That  defendants  were  judges  of  said  elec- 
tion, and,  against  the  protest  of  the  plaintiff,  required  him  to  sub- 
mit to  an  examination  touching  his  right  to  vote,  and  required  him 
to  take  a  prescribed  oath.  Upon  taking  such  oath  he  tendered  his 
ballot  to  the  defendants  and  demanded  that  it  be  deposited  in  the 
ballot-box,  which  the  defendants  unlawfully,  corruptly  and  mali- 
ciously refused  to  do,  to  the  great  injury  and  damage  of  the  plain- 
tiff, for  which  he  asked  judgment.  The  allegations  of  the  petition 
were  denied ;  trial  by  jury ;  verdict  for  the  plaintiff  for  three  hun- 
dred dollars,  for  which  judgment  was  rendered.  The  defendants 
appeal. 

S.  H.  Fairall,  Chas.  Baker  and  Geo.  J.  Bool,  for  appellants. 

Milton  Remley  and  S.  M.  Finch,  for  appellee. 

Seevers,  J. — The  material  facts  are,  that  in  January,  1875, 
the  plaintiff  was  nineteen  years  of  age,  and  his  home  or  residence 
was  with  his  father  in  Mitchell  county,  in  this  State.  At  that  tim^ 
he  was  sent  by  his  father  to  the  State  University  at  Iowa  City  for 
the  purpose  of  completing  his  education,  and  was  still  attending 
said  school  in  March,  1878,  when  he  offered  to  vote.  His  father 
furnished  the  means  required  for  the  plaintiff's  expenses  and  for 
the  payment  of  such  fees  as  were  required  at  the  University. 

His  father's  home  in  Mitchell  c  ounty  was  the  plaintiff's 
"headquarters"  or  residence  during  vacations,  except  when  he  was 
absent  from  there  on  hunting  or  other  excursions.  At  the  time 
he  offered  to  vote  the  plaintiff  was  unmarried  and  twenty-two 
years  of  age.  In  response  to  a  question  as  to  his  intention  to  make 
Iowa  City  his  home  after  he  ceased  to  attend  the  University,  the 
plaintiff,  being  then  on  the  witness  stand,  answered  as  follows: 
"I  didn't  know  what  I  would  do  after  I  had  graduated.     I  was  not 


86  PRIVATE  INTERNATIONAL   LAW. 

aware  that  I  would  ever  leave  Iowa  City.  I  did  not  know  what 
I  would  do  afterwards.  I  was  at  that  time  (when  he  offered  to 
vote)  without  any  intention."  Whether  the  plaintiff  was  a  legal 
voter  depends  on  the  question  whether  he  was  a  resident  of  John- 
son county  at  the  time  he  offered  to  vote.  As  to  this  we  have  to 
say: 

The  qualification  of  voters  is  defined  in  the  constitution,  arti- 
cle 2,  section  I,  as  follows :  "Every  male  citizen  of  the  United 
States,  of  the  age  of  twenty-one  years,  who  shall  have  been  a  resi- 
dent of  this  State  six  months  next  preceding  the  election,  and  of 
the  county  in  which  he  claims  his  vote  sixty  days,  shall  be  entitled 
to  vote     *     *     *     . "     Code,  772. 

If  it  was  the  intention  of  the  plaintiff  to  return  to  Mitchell 
county  when  he  had  finished  his  education,  it  would  probably  be 
conceded  that  his  place  of  residence,  within  the  meaning  of  the 
constitution,  continued  to  be  in  Mitchell  county  during  all  the  time 
he  was  absent.  And,  on  the  other  hand,  it  would  probably  be  ad- 
mitted, if,  when  he  went  to  Iowa  City,  or  at  any  time  thereafter 
before  he  offered  to  vote,  his  intention  was  to  make  that  place  his 
home  and  residence  when  he  ceased  to  attend  the  University,  that 
such  place  was  and  became  his  place  of  residence  in  such  sense 
that  he  would  have  become  a  legal  voter  in  Johnson  county. 

The  case  is  somewhat  different  from  these,  for  the  plaintiff 
had  not  formed  any  intention  of  either  staying  or  leaving  Iowa 
City  when  he  ceased  to  attend  the  University.  But  in  legal  con- 
templation, we  think,  there  is  no  difference  between  the  case  be- 
fore us  and  the  first  proposition  above  stated. 

It  is  undoubtedly  true  that  the  residence  of  the  plaintiff  was 
in  Mitchell  county  at  the  time  he  first  went  to  Iowa  City,  and  it 
must  be  equally  true  that  it  so  continued  until  he  acquired  an- 
other. Another  proposition  will,  we  think,  be  conceded,  and  that 
is,  that  an  individual  cannot  be  entitled  to  vote  in  two  different 
counties  in  this  State  at  the  same  election.  Yet  he  may,  in  a  cer- 
tain sense,  actually  reside  in  one  and  be  a  legal  voter  in  another. 
He  is  entitled  to  vote  only  in  the  county  where  his  home  is — 
where  his  fixed  place  of  residence  is  for  the  time  being — and  such 
place  is,  and  must  be,  his  domicile,  or  place  of  abode,  as  distin- 


DOMICIL   FOR   PURPOSES   OF   TAXATION.  87 

guished  from  a  residence  acquired  as  a  sojourner  for  business  pur- 
poses, the  attainment  of  an  education,  or  any  other  purpose  of  a 
temporary  character.  If  a  person  leaves  the  place  of  his  residence 
or  home  with  intent  of  residing  in  some  other  place  and  making  it 
his  fixed  place  of  residence,  but  never  consummates  such  intent, 
it  cannot  be  said  his  residence  has  been  changed  thereby.  But  if 
he  so  intends,  and  does  actually  become  a  resident  of  another  place, 
then  the  former  residence  will  be  regarded  as  abandoned  and  a 
new  one  acquired.  The  intent  and  the  fact  must  concur. 
Hinds  v.  Hinds,  I  Iowa,  36;  The  State  v.  Minnick,  15  Iowa,  123; 
the  opinion  of  the  judges  in  5  Met.,  587;  Fry's  Election  Case,  71 
Penn.  St.,  302. 

The  instructions  given  the  jury  are  not  in  accord  with  the 
views  above  expressed,  and  must,  therefore,  be  regarded  as  erro- 
neous. The  Circuit  Court  seems  to  have  been  of  the  opinion  that 
if  the  plaintiff  resided  in  Iowa  City  for  the  required  length  of 
time,  and  had  no  present  intention  of  leaving  when  he  ceased  to 
attend  the  University,  that  such  place,  in  a  constitutional  sense, 
became  his  residence.  Under  this  view,  the  plaintiff  would  be- 
come a  resident  and  voter  in  Iowa  City  although  he  was  there  for 
a  temporary  purpose  and  had  not  formed  affirmatively  the  inten- 
tion to  become  a  resident  of  such  place.  This  we  do  not  think  is 
the  law,  and,  for  the  error  in  the  instructions,  the  cause  must  be 
reversed.  We  deem  it  proper  to  say  that  the  seventh  instruction 
asked  embodies  correct  propositions  and  should  have  been  given 

without  modification. 

Reversed. 


DOMICIL  FOR  PURPOSES  OF  TAXATION. 

PULLMAN  CAR  CO.,  V.  PENN.,  141  U.  S.  18,  (1891). 

This  was  an  action  brought  by  the  State  of  Pennsylvania 
against  Pullman's  Palace  Car  Company,  a  corporation  of  Illinois, 
in  the  Court  of  Common  Pleas  of  the  county  of  Dauphin  in  the 
State  of  Pennsylvania,  to  recover  the  amount  of  a  tax  settled  by 
the  auditor  general  and  approved  by  the  treasurer  of  that  State, 
for  the  years  1870  to  1880  inclusive,  on  the  defendant's  capital 


88  PRIVATE   INTERNATIONAL  LAW. 

stock,  taking  as  the  basis  of  assessment  such  proportion  of  its 
capital  stock  as  the  number  of  miles  of  railroad  over  which  cars 
were  run  by  the  defendant  in  Pennsylvania  bore  to  the  whole  num- 
ber of  miles  in  this  and  other  States  over  which  its  cars  were  run. 

All  these  taxes  were  levied  under  successive  statutes  of  Penn- 
sylvania, imposing  taxes  on  capital  stock  of  corporations,  incor- 
porated by  the  laws  of  Pennsylvania  or  of  any  other  State,  and 
doing  business  in  Pennsylvania,  computed  on  a  certain  percentage 
of  dividends  made  or  declared.  The  taxes  for  1870- 1874  were 
levied  under  the  statute  of  May  1,  1868,  c.  69,  sec.  5,  which  ap- 
plied to  corporations  of  every  kind,  with  certain  exceptions  not 
material  to  this  case,  and  fixed  the  amount  of  the  tax  at  half  a 
mill  on  every  one  per  cent  of  dividend.  Penn.  Laws,  1868,  p.  109. 
The  taxes  for  1875- 1877  were  levied  under  the  statute  of  April  24, 
1874,  c.  31,  sec.  4,  which  applied  to  all  corporations  in  any  way  en- 
gaged in  the  transportation  of  freight  or  passengers,  and  fixed  the 
tax  at  nine-tenths  of  a  mill  on  every  one  per  cent  of  dividend. 
Penn.  Laws,  1874,  p.  70.  The  taxes  for  1878- 1880  were  levied 
under  the  statutes  of  March  20,  1877,  c.  5,  sec.  3,  and  of  June  7, 
1879,  c-  I22>  sec-  4>  applicable  to  all  corporations,  except  building 
associations,  banks,  savings  institutions  and  foreign  insurance 
companies,  and  fixing  the  tax  at  half  a  mill  on  each  one  per  cent 
of  dividend  of  six  per  cent  or  more  on  the  par  value  of  the  capital 
stock,  and,  when  the  dividend  was  less,  at  three  mills  on  a  valua- 
tion of  the  capital  stock.     Penn.  Laws,  1877,  p.  8 ;  1879,  P-  1 14- 

A  trial  by  jury  was  waived,  and  the  case  submitted  to  the  de- 
cision of  the  court,  which  found  the  following  facts :  "The  defend- 
ant is  a  corporation  of  the  State  of  Illinois,  having  its  principal 
office  in  Chicago.  Its  business  was,  during  all  the  time  for  which 
tax  is  charged,  to  furnish  sleeping  coaches  and  parlor  and  dining- 
room  cars  to  the  various  railroad  companies  with  which  it  con- 
tracted on  the  following  terms:  The  defendant  furnished  the 
coaches  and  cars,  and  the  railroad  companies  attached  and  made 
them  part  of  their  trains,  no  charge  being  made  by  either  party 
against  the  other.  The  railroad  companies  collected  the  usual 
fare  from  passengers  who  traveled  in  their  coaches  and  cars,  and 
the  defendant  collected  a  separate  charge  for  the  use  of  the  seats, 


DOMICIL   FOR  PURPOSES   OF  TAXATION.  89 

sleeping  berths  and  other  conveniences.  Business  has  been  car- 
ried on  continuously  by  the  defendant  in  this  way  in  Pennsylvania 
since  February  17,  1870,  and  it  has  had  about  one  hundred 
coaches  and  cars  engaged  in  this  way  in  the  State  during  that  time. 
The  cars  used  in  this  State  have,  during  all  the  time  for  which  tax 
is  charged,  been  running  into,  through  and  out  of  this  State." 

Upon  these  facts  the  court  held  "that  the  proportion  of  the 
capital  stock  of  the  defendant  invested  and  used  in  Pennsylvania 
is  taxable  under  these  acts ;  and  that  the  amount  of  the  tax  may 
be  properly  ascertained  by  taking  as  a  basis  the  proportion  which 
the  number  of  miles  operated  by  the  defendant  in  this  State  bears 
to  the  whole  number  of  miles  operated  by  it,  without  regard  to  the 
question  where  any  particular  car  or  cars  were  used ;"  and  there- 
fore gave  judgment  for  the  State. 

That  judgment  was  affirmed,  upon  writ  of  error,  by  the  Su- 
preme Court  of  the  State,  for  reasons  stated  in  its  opinion  as  fol- 
lows :  "We  think  it  very  clear  that  the  plaintiff  in  error  is  engaged 
in  carrying  on  such  a  business  within  this  commonwealth,  as  to 
subject  it  to  the  statutes  imposing  taxation.  While  the  tax  on  the 
capital  stock  of  a  company  is  a  tax  on  its  property  and  assets,  yet 
the  capital  stock  of  a  company  and  its  property  and  assets  are  not 
identical.  The  coaches  of  the  company  are  its  property.  They 
are  operated  within  this  State.  They  are  daily  passing  from  one 
end  of  the  State  to  the  other.  They  are  used  in  performing  the 
functions  for  which  the  corporation  was  created.  The  fact  that 
they  also  are  operated  in  other  States  cannot  wholly  exempt  them 
from  taxation  here.  It  reduces  the  value  of  the  property  in  this 
State,  justly  subject  to  taxation  here.  This  was  recognized  in  the 
court  below,  and  we  think  the  proportion  was  fixed  according  to  a 
just  and  equitable  rule."     107  Penn.  St.  156,  160. 

Pullman's  Palace  Car  Company  sued  out  a  writ  of  error  from 
this  court,  and  filed  six  assignments  of  error,  the  substance  of 
which  was  summed  up  in  the  brief  of  its  counsel  as  follows :  "The 
court  erred  in  holding  that  any  part  of  the  capital  stock  of  the 
Pullman  Company  was  subject  to  taxation  by  the  State  of  Penn- 
sylvania by  reason  of  its  running  any  of  its  cars  into,  out  of,  or 
through  the  State  of  Pennsylvania  in  the  course  of  their  employ- 
ment in  the  interstate  transportation  of  railway  passengers." 


90  PRIVATE   INTERNATIONAL  LAW. 

Mr.  Edward  S.  I  sham  and  Mr.  William  Barry  argued  for  the 
plaintiff  in  error  at  the  argument  on  the  18th  of  October,  1888. 

Mr.  Edivard  S.  I  sham  and  Mr.  John  S.  Runnels  argued  for 
the  plaintiff  in  error  at  the  argument  on  the  6th  of  March,  1890. 

Mr.  W.  S.  Kirkpatrick,  Attorney  General  of  the  State  of 
Pennsylvania,  argued  for  the  defendant  in  error  at  both  argu- 
ments. Mr.  John  F.  Sanderson,  Deputy  Attorney  General  of  that 
St?.te,  was  with  him  on  the  brief  in  both  cases. 

Mr.  Justice  Gray,  after  stating  the  case  as  above,  delivered 
the  opinion  of  the  court. 

Upon  this  writ  of  error,  whether  this  tax  was  in  accordance 
with  the  law  of  Pennsylvania  is  a  question  on  which  the  decision 
of  the  highest  court  of  the  State  is  conclusive.  The  only  question 
of  which  this  court  has  jurisdiction  is  whether  the  tax  was  in  vio- 
lation of  the  clause  of  the  Constitution  of  the  United  States  grant- 
ing to  Congress  the  power  to  regulate  commerce  among  the  sev- 
eral States.  The  plaintiff  in  error  contends  that  its  cars  could  be 
taxed  only  in  the  State  of  Illinois,  in  which  it  was  incorporated 
and  had  its  principal  place  of  business. 

No  general  principles  of  law  are  better  settled,  or  more  funda- 
mental, than  that  the  legislative  power  of  every  State  extends  to 
all  property  within  its  borders,  and  that  only  so  far  as  the  comity 
of  that  State  allows  can  such  property  be  affected  by  the  law  of 
any  other  State.  The  old  rule,  expressed  in  the  maxim  mobilia 
sequuntur  personam,  by  which  personal  property  was  regarded  as 
subject  to  the  law  of  the  owner's  domicil,  grew  up  in  the  Middle 
Ages,  when  movable  property  consisted  chiefly  of  gold  and  jewels, 
which  could  be  easily  carried  by  the  owner  from  place  to  place,  or 
secreted  in  spots  known  only  to  himself.  In  modern  times,  since 
the  great  increase  in  amount  and  variety  of  personal  property,  not 
immediately  connected  with  the  person  of  the  owner,  that  rule  has 
yielded  more  and  more  to  the  lex  situs,  the  law  of  the  place  where 
the  property  is  kept  and  used.  Green  v.  Van  Buskirk,  5  Wall. 
307,  and  7  Wall.  139 ;  Hervey  v.  Rhode  Island  Lomocotive  Works, 
93  U.  S.  664;  Harkness  v.  Russell,  118  U.  S.  663,  679;  Walworth 
v.  Harris,  129  U.  S.  355;  Story  on  Conflict  of  Laws,  sec.  550; 
Wharton  on  Conflict  of  Laws,  sees.  297-311.     As  observed  by  Mr. 


DOMICIL   FOR   PURPOSES   OF   TAXATION.  91 

Justice  Story,  in  his  commentaries  just  cited,  "although  movables 
are  for  many  purposes  to  be  deemed  to  have  no  situs,  except  that 
of  the  domicil  of  the  owner,  yet  this  being  but  a  legal  fiction,  it 
yields,  whenever  it  is  necessary  for  the  purpose  of  justice  that  the 
actual  situs  of  the  thing  should  be  examined.  A  nation  within 
whose  territory  any  personal  property  is  actually  situate  has  an 
entire  dominion  over  it  while  therein,  in  point  of  sovereignty  and 
jurisdiction,  as  it  has  over  immovable  property  situate  there." 

For  the  purposes  of  taxation,  as  has  been  repeatedly  affirmed 
by  this  court,  personal  property  may  be  separated  from  its  owner : 
and  he  may  be  taxed,  on  its  account,  at  the  place  where  it  is,  al- 
though not  the  place  of  his  own  domicil,  and  even  if  he  is  not  a 
citizen  or  a  resident  of  the  State  which  imposes  the  tax.  Lane 
Comity  v.  Oregon,  7  Wall.  71,  jy,  Railroad  Co.  v.  Pennsylvania, 
15  Wall.  300,  323,  324,  328;  Railroad  Co.  v.  Peniston,  18  Wall.  5, 
29;  Tappan  v.  Merchants'  Bank,  19  Wall.,  490,  499;  State  Rail- 
road Tax  Cases,  92  U.  S.  575,  607,  608;  Brown  v.  Houston,  114 
U.  S.  622 ;  Coe  v.  Errol,  1 16  U.  S.  517,  524 ;  Marys  v.  Baltimore  & 
Ohio  Railroad,  127  U.  S.  117,  12^. 

It  is  equally  well  settled  that  there  is  nothing  in  the  Constitu- 
tion or  laws  of  the  United  States  which  prevents  a  State  from  tax- 
ing personal  property,  employed  in  interstate  or  foreign  com- 
merce, like  other  personal  property  within  its  jurisdiction.  Dela- 
ware Railroad  Tax,  18  Wall.  206,  232 ;  Telegraph  Co.  v.  Texas, 
105  U.  S.  460,  464;  Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U. 
S.  196,  206,  211 ;  Western  Union  Telegraph  Co.  v.  Attorney  Gen- 
eral of  Massachusetts,  125  U.  S.  530,  549;  Marye  v.  Baltimore  & 
Ohio  Railroad,  127  U.  S.  117,  124;  Leloup  v.  Mobile,  127  U.  S. 
640,  649. 

Ships  or  vessels,  indeed,  engaged  in  interstate  or  foreign  com- 
merce upon  the  high  seas,  or  other  waters  which  are  a  common 
highway,  and  having  their  home  port,  at  which  they  are  registered 
under  the  laws  of  the  United  States,  at  the  domicil  of  their  owners 
in  one  State,  are  not  subject  to  taxation  in  another  State  at  whose 
ports  they  incidentally  and  temporarily  touch  for  the  purpose  of 
delivering  or  receiving  passengers  or  freight.  But  that  is  because 
they  are  not,  in  any  proper  sense,  abiding  within  its  limits,  and 


92  PRIVATE   INTERNATIONAL   LAW. 

have  no  continuous  presence  or  actual  situs  within  its  jurisdiction, 
and,  therefore,  can  be  taxed  only  at  their  legal  situs,  their  home 
port  and  the  domicil  of  their  owners.  Hays  v.  Pacific  Mail  Steam- 
ship Co.,  17  How.  596;  St.  Louis  v.  Ferry  Co.,  11  Wall.  423 ;  Mor- 
gan v.  Parham,  16  Wall.  471 ;  Wiggins  Ferry  Co.  v.  East  St. 
Louis,  107  U.  S.  365;  Gloucester  Ferry  Co.  v.  Pennsylvania,  114 
U.  S.  196. 

Between  ships  and  vessels,  having  their  situs  fixed  by  act  of 
Congress,  and  their  course  over  navigable  waters,  and  touching 
land  only  incidentally  and  temporarily ;  and  cars  or  vehicles  of  any 
kind,  having  no  situs  so  fixed,  and  traversing  the  land  only,  the 
distinction  is  obvious.  As  has  been  said  by  this  court:  "Com- 
merce on  land  between  the  different  States  is  so  strikingly  dissimi- 
lar, in  many  respects,  from  commerce  on  water,  that  it  is  often 
difficult  to  regard  them  in  the  same  aspect  in  reference  to  the  re- 
spective constitutional  powers  and  duties  of  the  State  and  Federal 
governments.  No  doubt  commerce  by  water  was  principally  in 
the  minds  of  those  who  framed  and  adopted  the  Constitution,  al- 
though both  its  language  and  spirit  embrace  commerce  by  land 
as  well.  Maritime  transportation  requires  no  artificial  roadway. 
Nature  has  prepared  to  hand  that  portion  of  the  instrumentality 
employed.  The  navigable  waters  of  the  earth  are  recognized  pub- 
lic highways  of  trade  and  intercourse.  No  franchise  is  needed  to 
enable  the  navigator  to  use  them.  Again,  the  vehicles  of  com- 
merce by  water  being  instruments  of  intercommunication  with 
other  nations,  the  regulation  of  them  is  assumed  by  the  national 
legislature.  So  that  state  interference  with  transportation  by 
water,  and  especially  by  sea,  is  at  once  clearly  marked  and  dis- 
tinctly discernible.  But  it  is  different  with  transportation  by 
land."     Railroad  Co.  v.  Maryland,  21  Wall.  456,  470. 

In  Gloucester  Ferry  Co.  v.  Pennsylvania,  on  which  the  plain- 
tiff in  error  much  relies,  the  New  Jersey  corporation  taxed  by  the 
State  of  Pennsylvania,  under  one  of  the  statutes  now  in  question, 
had  no  property  in  Pennsylvania  except  a  lease  of  a  wharf  at 
which  its  steamboats  touched  to  land  and  receive  passengers  and 
freight  carried  across  the  Delaware  River;  and  the  difference  in 
the  facts  of  that  case  and  of  this,  and  in  the  rules  applicable,  was 


DOMICIL   FOR   PURPOSES   OF    TAXATION.  93 

clearly  indicated  in  the  opinion  of  the  court  as  follows :  "It  is  true 
that  the  property  of  corporations  engaged  in  foreign  or  interstate 
commerce,  as  well  as  the  property  of  corporations  engaged  in 
other  business,  is  subject  to  taxation,  provided  always  it  be  within 
the  jurisdiction  of  the  State."  114  U.  S.  206.  "While  it  is  con- 
ceded that  the  property  in  a  State  belonging  to  a  foreign  corpora- 
tion engaged  in  foreign  or  interstate  commerce  may  be  taxed 
equally  with  like  property  of  a  domestic  corporation  engaged  in 
that  business,  we  are  clear  that  a  tax  or  other  burden  imposed  on 
the  property  of  either  corporation  because  it  is  used  to  carry  on 
that  commerce,  or  upon  the  transportation  of  persons  or  property, 
or  for  the  navigation  of  the  public  waters  over  which  the  trans- 
portation is  made,  is  invalid  and  void,  as  an  interference  with,  and 
an  obstruction  of,  the  power  of  Congress  in  the  regulation  of  such 
commerce."     114  U.  S.  211. 

Much  reliance  is  also  placed  by  the  plaintiff  in  error  upon  the 
cases  in  which  this  court  has  decided  that  citizens  or  corporations 
of  one  State  cannot  be  taxed  by  another  State  for  a  license  or 
privilege  to  carry  on  interstate  or  foreign  commerce  within  its 
limits.  But  in  each  of  those  cases  the  tax  was  not  upon  the  prop- 
erty employed  in  the  business,  but  upon  the  right  to  carry  on  the 
business  at  all,  and  was  therefore  held  to  impose  a  direct  burden 
upon  the  commerce  itself.  Moran  v.  New  Orleans,  112  U.  S.  69, 
74;  Pickard  v.  Pullman's  Southern  Car  Co.,  117  U.  S.  34,  43; 
Robbins  v.  Shelby  Taxing  District,  120  U.  S.  489,  497;  Leloup  v. 
Mobile,  127  U.  S.  640,  644.  For  the  same  reason,  a  tax  upon  the 
gross  receipts  derived  from  the  transportation  of  passengers  and 
goods  between  one  State  and  other  States  or  foreign  nations  has 
been  held  to  be  invalid.  Fargo  v.  Michigan,  121  U.  S.  230 ;  Phila- 
delphia &  Southern  Steamship  Co.  v.  Pennsylvania,  122  U.  S.  326. 

The  tax  now  in  question  is  not  a  license  tax  or  a  privilege  tax ; 
it  is  not  a  tax  on  business  or  occupation ;  it  is  not  a  tax  on,  or  be- 
cause of,  the  transportation,  or  the  right  of  transit,  of  persons  or 
property  through  the  State  to  other  States  or  countries.  The  tax 
is  imposed  equally  on  corporations  doing  business  within  the 
State,  whether  domestic  or  foreign,  and  whether  engaged  in  inter- 
state commerce  or  not.     The  tax  on  the  capital  of  the  corporation, 


94  PRIVATE   INTERNATIONAL  LAW. 

on  account  of  its  property  within  the  State,  is,  in  substance  and 
effect,  a  tax  on  that  property.  Gloucester  Ferry  Co.  v.  Pennsyl- 
vania, 114U.  S.  196,  209;  Western  Union  Telegraph  Co.  v.  Attor- 
ney General  of  Massachusetts,  125  U.  S.  530,  552.  This  is  not 
only  admitted,  but  insisted  upon,  by  the  plaintiff  in  error. 

The  cars  of  this  company  within  the  State  of  Pennsylvania 
are  employed  in  interstate  commerce ;  but  their  being  so  employed 
does  not  exempt  them  from  taxation  by  the  State ;  and  the  State 
has  not  taxed  them  because  of  their  being  so  employed,  but  be- 
cause of  their  being  within  its  territory  and  jurisdiction.  The 
cars  were  continuously  and  permanently  employed  in  going  to  and 
fro  upon  certain  routes  of  travel.  If  they  had  never  passed  be- 
yond the  limits  of  Pennsylvania,  it  could  not  be  doubted  that  the 
State  could  tax  them,  like  other  property,  within  its  borders,  not- 
withstanding they  were  employed  in  interstate  commerce.  The 
fact  that,  instead  of  stopping  at  the  state  boundary,  they  cross  that 
boundary  in  going  out  and  coming  back,  cannot  affect  the  power 
of  the  State  to  levy  a  tax  upon  them.  The  State,  having  the  right, 
for  the  purposes  of  taxation,  to  tax  any  personal  property  found 
within  its  jurisdiction,  without  regard  to  the  place  of  the  owner's 
domicil,  could  tax  the  specific  cars  which  at  a  given  moment  were 
within  its  borders.  The  route  over  which  the  cars  travel  extend- 
ing beyond  the  limits  of  the  State,  particular  cars  may  not  remain 
within  the  State ;  but  the  company  has  at  all  times  substantially  the 
same  number  of  cars  within  the  State,  and  continuously  and  con- 
stantly uses  there  a  portion  of  its  property;  and  it  is  distinctly 
found,  as  matter  of  fact,  that  the  company  continuously,  through- 
out the  periods  for  which  these  taxes  were  levied,  carried  on  busi- 
ness in  Pennsylvania,  and  had  about  one  hundred  cars  within  the 
State. 

The  mode  which  the  State  of  Pennsylvania  adopted,  to  ascer- 
tain the  proportion  of  the  company's  property  upon  which  it 
should  be  taxed  in  that  State,  was  i>y  taking  as  a  basis  of  assess- 
ment such  proportion  of  the  capital  stock  of  the  company  as  the 
number  of  miles  over  which  it  ran  cars  within  the  State  bore  to 
the  whole  number  of  miles,  in  that  and  other  States,  over  which  its 
cars  were  run.     This  was  a  just  and  equitable  method  of  assess- 


DOMICIL   FOR   PURPOSES   OP   TAXATION.  95 

ment ;  and,  if  it  were  adopted  by  all  the  States  through  which  these 
cars  ran,  the  company  would  be  assessed  upon  the  whole  value  of 
its  capital  stock,  and  no  more. 

The  validity  of  this  mode  of  apportioning  such  a  tax  is  sus- 
tained by  several  decisions  of  this  court,  in  cases  which  came  up 
from  the  Circuit  Courts  of  the  United  States,  and  in  which,  there- 
fore, the  jurisdiction  of  this  court  extended  to  the  determination 
of  the  whole  case,  and  was  not  limited,  as  upon  writs  of  error  to 
the  state  courts,  to  questions  under  the  Constitution  and  laws  of 
the  United  Mates. 

In  the  State  Railroad  Tax  Cases,  92  U.  S.  575,  it  was  ad 
judged  that  a  statute  of  Illinois,  by  which  a  tax  on  the  entire  tax 
able  property  of  a  railroad  corporation,  including  its  rolling  stock, 
capital  and  franchise,  was  assessed  by  the  State  board  of  equaliza 
tion,  and  was  collected  in  each  municipality  in  proportion  to  the 
length  of  the  road  within  it,  was  lawful,  and  not  in  conflict  with 
the  Constitution  of  the  State;  and  Mr.  Justice  Miller  delivering 
judgment  said: 

"Another  objection  to  the  system  of  taxation  by  the  State  is, 
that  the  rolling  stock,  capital  stock  and  franchise  are  personal 
property,  and  that  this,  with  all  other  personal  property,  has  a  local 
situs  at  the  principal  place  of  business  of  the  corporation,  and  can 
be  taxed  by  no  other  county,  city  or  town,  but  the  one  where  it  is 
so  situated.  This  objection  is  based  upon  the  general  rule  of  law 
that  personal  property,  as  to  its  situs,  follows  the  domicil  of  its 
owner.  It  may  be  doubted  very  reasonably  whether  such  a  rule 
can  be  applied  to  a  railroad  corporation  as  between  the  different 
localities  embraced  by  its  line  of  road.  But,  after  all,  the  rule  is 
merely  the  law  of  the  State  which  recognizes  it;  and  when  it  is 
called  into  operation  as  to  property  located  in  one  State,  and  owned 
by  a  resident  of  another,  it  is  a  rule  of  comity  in  the  former  State 
rather  than  an  absolute  principle  in  all  cases.  Green  v.  Van  Bus- 
kirk,  5  Wall.  312.  Like  all  other  laws  of  a  State,  it  is,  therefore, 
subject  to  legislative  repeal,  modification  or  limitation ;  and  when 
the  legislature  of  Illinois  declared  that  it  should  not  prevail  in  as- 
sessing personal  property  of  railroad  companies  for  taxation,  it 
simply  exercised  an  ordinary  function  of  legislation."  92  U.  S. 
607,  608. 


96  PRIVATE  INTERNATIONAL  LAW. 

"It  is  further  objected  that  the  railroad  track,  capital  stock 
and  franchise  is  not  assessed  in  each  counry  where  it  lies,  accord- 
ing to  its  value  there,  but  according  to  an  aggregate  value  of  the 
whole,  on  which  each  county,  city  and  town  collects  taxes  accord- 
ing to  the  length  of  the  track  within  its  limits."  "It  may  well  be 
doubted  whether  any  better  mode  of  determining  the  value  of  that 
portion  of  the  track  within  any  one  county  has  been  devised,  than 
to  ascertain  the  value  of  the  whole  road,  and  apportion  the  value 
within  the  county  by  its  relative  length  to  the  whole."  "This 
court  has  expressly  held  in  two  cases,  where  the  road  of  a  corpora 
tion  ran  through  different  States,  that  a  tax  upon  the  income  en- 
franchise of  the  road  was  properly  apportioned  by  taking  the 
whole  income  or  value  of  the  franchise,  and  the  length  of  the  road 
within  each  State,  as  the  basis  of  taxation.  Delaware  Railroad 
Tax,  18  Wall.  206;  Erie  Railroad  v.  Pennsylvania,  21  Wall.  492." 
92  U.  S.  608,  611. 

So  in  Western  Union  Telegraph  Co.  v.  Attorney  General  of 
Massachusetts,  125  U.  S.  530,  this  court  upheld  the  validity  of  a 
tax  imposed  by  the  State  of  Massachusetts  upon  the  capital  stock 
of  a  telegraph  company,  on  account  of  property  owned  and  used 
by  it  within  the  State,  taking  as  the  basis  cf  assessment  such  pro- 
portion of  the  value  of  its  capital  stock  as  the  length  of  its  lines 
within  the  State  bore  to  their  entire  length  throughout  the  coun- 
try. 

Even  more  in  point  is  the  case  of  Marye  v.  Baltimore  &  Ohio 
Railroad,  127  U.  S.  117,  in  which  the  question  was  whether  a  rail- 
road company  incorporated  by  the  State  of  Mai  yland,  and  no  part 
of  whose  own  railroad  was  within  the  State  of  Virginia,  was  tax- 
able under  general  laws  of  Virginia  upon  rolling  stock  owned  by 
the  company,  and  employed  upon  connecting  railroads  leased  by  it 
in  that  State,  yet  not  assigned  permanently  to  those  roads,  but  used 
interchangeably  upon  them  and  upon  roads  in  other  States,  as  the 
company's  necessities  required.  It  was  held  not  to  be  so  taxable, 
solely  because  the  tax  laws  of  Virginia  appeared  upon  their  face 
to  be  limited  to  railroad  corporations  of  that  State ;  and  Mr.  Jus- 
tice Matthews,  delivering  the  unanimous  judgment  of  the  court, 
said: 


DOMICIL   FOR   PURPOSES   OF   TAXATION.  97 

"It  is  not  denied,  as  it  cannot  be,  that  the  Srate  of  Virginia  has 
rightful  power  to  levy  and  collect  a  tax  upon  j-uch  property  used 
and  found  within  its  territorial  limits,  as  this  property  was  used 
and  found,  if  and  whenever  it  may  choose,  by  apt  legislation,  to 
exert  its  authority  over  the  subject.  It  is  quite  true,  as  the  situs 
of  the  Baltimore  and  Ohio  Railroad  Company  is  in  the  State  of 
Maryland,  that  also,  upon  general  principles,  is  the  situs  of  all  its 
personal  property;  but  for  purposes  of  taxation,  as  well  as  for 
other  purposes,  that  situs  may  be  fixed  in  whatever  locality  the 
property  may  be  brought  and  used  by  its  owner  by  the  law  of  the 
place  where  it  is  found.  If  the  Baltimore  and  Ohio  Railroad 
Company  is  permitted  by  the  State  of  Virginia  to  bring  into  its 
territory,  and  there  habitually  to  use  and  employ  a  portion  of  its 
movable  personal  property,  and  the  railroad  company  chooses  so 
to  do,  it  would  certainly  be  competent  and  legitimate  for  the  State 
to  impose  upon  such  property,  thus  used  and  employed,  its  fair 
share  of  the  burdens  of  taxation  imposed  upv>n  similar  property 
used  in  the  like  way  by  its  own  citizens.  And  such  a  tax  might  be 
properly  assessed  and  collected  in  cases  like  the  present,  where  the 
specific  and  individual  items  of  property  so  used  and  employed 
were  not  continuously  the  same,  but  were  constantly  changing, 
according  to  the  exigencies  of  the  business.  In  such  cases,  the 
tax  might  be  fixed  by  an  appraisement  and  valuation  of  the  aver- 
age amount  of  the  property  thus  habitually  used,  and  collected  by 
distraint  upon  any  portion  that  might  at  any  time  be  found.  Ot 
course,  the  lawlessness  of  a  tax  upon  vehicles  of  transportation 
used  by  common  carriers  might  have  to  be  considered  in  particular 
instances  with  reference  to  its  operation  as  a  regulation  of  com- 
merce among  the  States,  but  the  mere  fact  'hat  they  were  em- 
ployed as  vehicles  of  transportation  in  the  interchange  of  inter- 
state commerce  would  not  render  their  taxation  invalid."  127 
U.  S.  123,  124. 

For  these  reasons,  and  upon  these  authorities,  the  court  is  of 
opinion  that  the  tax  in  question  is  constitutional  and  valid.  The 
result  of  holding  otherwise  would  be  that,  if  all  the  States  should 
concur  in  abandoning  the  legal  fiction  that  personal  property  has 
its  situs  at  the  owner's  domicil,  and  in  adopting  the  system  of  tax 


98  PRIVATE   INTERNATIONAL  LAW. 

ing  it  at  the  place  at  which  it  is  used  and  by  whose  laws  it  is  pro- 
tected, property  employed  in  any  business  requiring  continuous 
and  constant  movement  from  one  State  to  another  would  escape 

taxation  altogether. 

Judgment  affirmed. 

Mr.  Justice  Bradley,  with  whom  concurred  Mr.  Justice 

Field  and  Mr.  Justice  Harlan,  dissenting. 


EVIDENCE  OF  DOMICIL. 
FIRTH  v.  FIRTH,  50  N.  J.  EQ.  137,  (1892). 

On  ex  parte  hearing  on  petition,  master's  report  and  proofs 
taken  before  a  master. 

Mr.  Silas  W.  De  Witt,  for  petitioner. 

Van  Vleet,  V.  C. 

This  is  a  suit  for  divorce  by  a  husband  against  his  wife  for 
adultery.  The  crime  charged  has  been  proved.  If  the  only  ques 
tion  presented  was  whether  or  not  the  defendant's  guilt  had  been 
established,  the  case  could  very  easily  be  decided.  But  it  presents 
another  and  much  more  troublesome  query,  namely :  Had  the  pe- 
titioner, when  he  brought  his  suit,  a  right  to  bue  for  a  divorce  in 
this  state?  or,  stated  in  another  form,  Has  this  court  power,  on 
the  facts  of  the  case  as  they  appear  in  the  proofs,  to  dissolve  his 
marriage  with  the  defendant?  The  decisive  question  of  the  case 
is  one  of  jurisdiction. 

The  parties  were  married  in  Iowa.  Though  they  lived  to- 
gether as  husband  and  wife  for  nearly  three  years — from  June 
13th,  1886  (the  date  of  their  marriage),  until  May,  1889. — they 
were  never,  during  that  period,  in  this  state,  either  together  or 
separately.  The  adulterous  acts  proved  were  committed  in  Chi- 
cago, Illinois.  The  defendant  has  been  proceeded  against  as  an 
absent  defendant,  resident  in  Illinois,  and  has  been  brought  into 
court  by  notice  published  and  served  through  the  mail  as  required 
by  the  usual  order  of  publication.  Under  this  state  of  facts  it  is 
manifest  that  the  only  ground  of  jurisdiction  on  which  a  decree  in 
favor  of  the  petitioner  can  rest  is,  that  he  was  a  resident  of  this 


EVIDENCE   OF   DOMICIL.  99 

state,  having  his  domicil  here  when  he  brought  this  suit.  It  is 
only  on  the  ground  that  he  is  a  citizen  of  this  state,  and  as  such 
entitled  to  the  rights  and  remedies  which  its  laws  confer,  that  this 
court  may,  in  the  rightful  exercise  of  its  powers,  ascertain,  fix  and 
declare  his  matrimonial  status.  The  rule  of  jurisdiction  in  such 
cases  was  defined  by  Chancellor  Zabriskie,  in  Coddington  v.  Cod- 
dington,  5  C.  E.  Gr.  263,  264,  as  follows :  "Proceedings  with  re- 
gard to  the  validity  or  dissolution  of  marriage  are,  as  was  held  in 
the  celebrated  case  of  the  Duchess  of  Kingston,  proceedings  in 
rem.  They  actually  operate  upon  the  matter;  they  affirm,  consti- 
tute or  dissolve  the  marriage  relation.  By  the  well-settled  prin- 
ciples of  the  jus  gentium,  or  rules  acknowledged  by  the  codes  of 
all  civilized  nations,  and  given  effect  by  comity  of  law  when  not 
controlled  by  positive  enactments,  the  position  and  relative  status 
of  every  person  is  regulated  by  the  law  of  his  domicil."  The 
domicil  of  origin  is  retained  until  another  is  acquired.  After  a 
person  has  abandoned  his  domicil  of  origin,  his  domicil  will  be 
considered  to  be  in  that  place  in  which  he  has  voluntarily  fixed  his 
habitation,  not  for  a  mere  temporary  or  special  purpose,  but  with 
a  present  intention  of  making  it  his  home,  unless  or  until  some- 
thing which  is  uncertain  or  unexpected  shall  happen  to  induce  him 
to  adopt  some  other  permanent  home.     Harral  v.  Harral,  12  Stew. 

70,  285. 

The  controlling  question  of  the  case  then  is,  Was  the  peti- 
tioner a  citizen  of  this  state,  having  his  domicil  here,  when  he 
brought  this  suit?  His  petition  was  sworn  to  at  Salt  Lake  Citv, 
Utah,  on  the  22(1  day  of  October,  1891,  and  filed  on  the  31st  day 
of  the  same  month.  The  first  evidence  he  gave  in  the  case  as  a 
witness  was  given  at  the  same  place  on  the  19th  day  of  March, 
1892,  under  a  commission  issued  by  this  court.  The  reason  he 
assigned  in  his  affidavit  to  obtain  the  commission,  why  he  could 
not  give  his  evidence  in  this  state,  was  that  he  was  then  located  ill 
Salt  Lake  City  in  connection  with  the  Denver  and  Rio  Grande  rail- 
road, and  it  was,  consequently,  impossible  for  him  to  leave  the 
west  and  come  east,  and  he  was  unable  to  say  when  he  could  get 
away  from  his  work,  which  at  that  time  confined  him  there.  In 
giving  his  evidence  under  the  commission,  in  reply  to  an  interroga- 


100  PRIVATE   INTERNATIONAL   LAW. 

tory  put  to  him  in  these  words,  "Where  is  your  place  of  residence, 
and  how  long  have  you  resided  there?"  he  said,  "Phillipsburg, 
New  Jersey ;  I  have  resided  there  since  1863."  When  the  case 
was  first  presented  for  consideration,  the  above  question  and  an- 
swer embraced  all  the  evidence  there  was  going  to  show  where  the 
petitioner  was  domiciled  when  he  brought  this  suit.  As  it  was 
manifestly  insufficient  to  prove  the  only  fact  which  authorized  the 
court  to  take  jurisdiction  of  the  suit,  being,  when  viewed  in  its 
legal  aspect,  simply  the  statement  of  a  conclusion,  unaccompanied 
by  the  specification  of  a  single  fact  tending  to  show  that  it  was 
well  founded,  the  petitioner  was  given  leave  to  take  further  evi- 
dence. Since  then  he  has  returned  to  this  state,  and  has  been  fur- 
ther examined  on  the  matter  under  consideration.  He  gave  his 
evidence  before  the  special  master  to  whom  the  cause  had  been 
referred  to  take  proofs  and  make  a  report. 

From  the  proofs  now  in  the  case,  it  appears  that  the  petitioner 
was  born  at  Phillipsburg,  in  this  state,  about  1863,  and  continued 
to  live  there  until  1884,  when  he  left  and  went  to  Nebraska,  and 
afterwards  to  the  Bermuda  Islands,  and  remained  absent  until  the 
early  part  of  1885.  He  then  returned  and  remained  here  for  a 
short  time,  but  left  again  in  the  spring  of  1885  and  went  to  Ne- 
braska. His  father  died  of  phthisis  or  consumption  over  twenty 
years  ago.  This  disease  is  supposed  to  be  hereditary  in  the  fam- 
ily. Up  to  the  time  the  petitioner  left  in  1884  he  had  been  a  mem- 
ber of  his  mother's  family,  living  with  her  in  the  homestead  house, 
where  she  and  her  husband  had  lived  up  to  the  time  of  his  death, 
and  where  she  continued  to  live  with  her  children  after  her  hus- 
band's death.  The  petitioner,  it  will  be  observed,  had  attained  his 
majority  shortly  before  he  left  in  the  spring  of  1885.  He  went 
away  then,  he  says,  on  account  of  his  health — in  search  of  a  cli- 
mate less  dangerous  to  a  person  predisposed  to  pulmonary  diseases 
than  that  of  this  state.  From  the  spring  of  1885  he  was  continu- 
ously absent  from  this  state  and  in  the  west,  at  Omaha,  Denver, 
and  Salt  Lake  City,  until  December,  1890.  For  the  major  part  of 
this  period,  I  judge  from  his  evidence,  he  was  employed  as  a  clerk 
in  the  auditor's  department  of  the  Denver  and  Rio  Grande  Rail- 
road Company.     He  says  he  was  so  employed  for  a  year  in  Den- 


EVIDENCE   OF   DOMICIL.  101 

ver ;  then,  in  April,  1890,  the  office  was  transferred  to  Salt  Lake 
City  and  he  went  with  it,  and  continued  to  be  employed  in  it  up  to 
December,  1890.  He  then  came  east  to  Phillipsburg  and  remained 
in  the  east  until  March,  1891,  when  he  returned  to  Salt  Lake  City 
and  resumed  work  in  the  same  office,  and  was  still  at  work  there 
when  he  swore  to  his  petition  on  the  22d  day  of  October,  1891,  and 
also  when  he  gave  his  evidence  under  the  commission  on  the  19th 
day  of  March,  1892. 

So  that  it  appears,  from  the  petitioner's  own  testimony,  that 
the  facts  as  to  his  actual  habitancy  for  the  six  years  and  six 
months  intervening  between  the  time  when  he  left  this  state,  in 
the  spring  of  1885,  and  the  time  when  he  filed  his  petition  on  the 
31st  day  of  October,  1891,  are,  that  for  three  months  of  the  six 
years  and  six  months  he  was  an  inhabitant  of  this  state,  and  that 
for  the  other  six  years  and  three  months  his  place  of  actual  habita- 
tion was  without  this  state,  and  in  the  States  of  Nebraska  and 
Colorado  and  Territory  of  Utah.  He  says,  however,  that  he  al- 
ways considered  and  spoke  of  Phillipsburg  as  his  home ;  wrote  it 
as  his  place  of  residence  on  hotel  registers ;  when  he  married  in 
June,  1886,  he  gave  that  as  his  residence,  and  that  he  never  paid 
poll  tax  in  the  west,  nor  voted  anywhere  except  at  Phillipsburg. 
But  he  does  not  tell  when  he  voted  at  Phillipsburg.  He  certainly 
did  not  after  the  spring  of  1885.  He  also  says  that  there  was  a 
room  in  his  mother's  house  which  was  called  his,  where  he  kept 
pictures,  books,  shells  and  other  like  things  up  to  the  time  of  his 
mother's  death  in  January,  1892,  when  these  things  were  removed 
to  his  brother's  house  in  Phillipsburg,  where  they  have  since  re- 
mained. As  already  stated,  he  and  the  defendant  were  married  on 
the  13th  day  of  June,  1886,  at  Red  Oak,  Iowa,  and  lived  together 
thereafter,  as  husband  and  wife,  continuously  until  May,  1889. 
The  petitioner  says  he  and  his  wife  never  kept  house,  and  stops 
there.  He  does  not  tell  where  they  made  their  abiding  place  or 
home — where  they  ate,  slept  and  surrounded  themselves  with  such 
things  as  their  relation,  comfort  and  position  required  them  to 
have.  In  May,  1889,  the  defendant  left  the  petitioner  to  visit  her 
uncle  in  Chicago.  The  petitioner  procured  passes  for  her  jour- 
ney.    After  she  reached  Chicago  she  refused  to  return.     The  pe- 


102  PRIVATE   INTERNATIONAL   LAW. 

titioner  says  she  first  wrote  that  she  would  have  nothing  more  to 
do  with  him,  and  that  afterwards  he  called  on  her  in  Chicago  and 
urged  her  to  return  and  she  refused.  The  foregoing  statement 
embraces,  I  believe,  every  fact  entitled  to  the  least  consideration 
in  determining  the  question  now  under  consideration. 

The  decision  of  questions  of  disputed  domicil  are  frequently 
surrounded  with  a  great  many  practical  difficulties.  The  evidence 
is  often  obscure,  equivocal  and  contradictory.  The  acts  or  con- 
duct of  the  person  whose  domicil  is  the  subject  of  dispute  will,  in 
many  cases,  seem  to  indicate  with  certainty  that  his  residence  must 
have  been  in  one  place,  while  his  declarations  go  to  show  that  it 
was  in  another.  That  is  the  case  here.  If  we  look  at  the  peti- 
tioner's acts  alone,  and  remember  that  he  left  just  after  he  had 
attained  the  age  when  he  was  at  liberty  to  go  where  he  pleased, 
engage  in  any  pursuit  he  saw  fit,  and  establish  a  new  home  for 
himself ;  that  he  went  in  search  of  a  more  genial  climate,  in  order 
to  protect  himself  against  a  disease  which  it  was  believed  he  had 
inherited,  and  which  it  was  feared  would  surely  claim  him  as  its 
victim  if  he  remained  here ;  that  he  found  such  a  climate  together 
with  steady  and  pleasant  employment;  that  within  a  little  over  a 
year  after  he  went  away  he  married,  and  thus  placed  himself  in  a 
position  where  a  home,  in  which  he  might  set  up  his  household 
gods,  became,  unless  he  is  strangely  different  from  other  men,  the 
natural  desire  of  his  heart ;  that  although  he  lived  with  his  wife 
for  nearly  three  years,  she  and  he  were  never,  during  that  time, 
at  his  home  of  origin  in  this  state ;  that  he  remained  continuously 
absent  from  this  state  for  over  five  years  and  six  months,  and  that 
shortly  after  he  came  here  in  December,  1890,  he  returned  to  Salt 
Lake  City,  and  at  once,  on  his  return,  resumed  the  work  he  was 
doing  when  he  left,  and  that  he  was  still  there,  engaged  in  the 
same  work,  on  the  31st  day  of  October,  1891,  when  he  swore  to 
his  petition  in  this  case,  the  conclusion  would  seem  to  be  well  nigh 
unavoidable  that  he  had  abandoned  his  domicil  of  origin  and  es- 
tablished a  new  home.  He  swears,  on  the  contrary,  that  he  did 
not,  but  that  his  intention  has  alwavs  been  to  retain  his  domicil  of 
origin.  The  actual  intention  of  the  person  whose  domicil  is  in  dis- 
pute is,  in  cases  of  this  kind,  a  fact  of  great  importance,  but  the 


EVIDENCE   OF   DOMICIL.  103 

best  and  most  trustworthy  evidence  of  it  is  found,  as  a  general 
rule,  in  his  acts  rather  than  in  his  declarations.  His  declarations 
may  be  competent  as  evidence  of  his  intentions,  but  they  are  by  no 
means  conclusive,  and  when  they  are  contradicted  by  decisive  acts 
of  habitancy,  as  holding  office,  voting  and  the  like,  their  probative 
force  is  very  light.  In  two  cases,  decided  by  the  supreme  court 
of  Massachusetts  in  1879,  &  appeared  that  the  two  persons  whose 
domicils  were  in  dispute  had,  as  they  testified,  made  up  their  minds 
to  change  their  permanent  residences  from  Boston  to  Nahant,  and 
that  they  subsequently  gave  notice,  in  writing  to  the  taxing  au- 
thorities of  Boston  that  they  had  done  so,  but  it  likewise  appeared 
that,  after  the  alleged  change,  though  they  spent  a  part  of  their 
time  at  Nahant,  they  continued,  for  a  part  of  each  year,  to  occupy 
dwellings  in  Boston  which  were  more  in  keeping  with  their  means 
and  position  than  those  they  lived  in  while  at  Nahant,  and  that  acts 
of  habitancy  had  been  performed  at  both  places.  The  jury  found 
they  were  domiciled  in  Boston,  and  the  court,  after  hearing  the 
case  on  exceptions,  ordered  judgments  to  be  entered  on  the  ver- 
dicts, declaring  that  the  evidence  of  the  parties  as  to  their  intention 
was  not  conclusive,  but  their  acts  must  also  be  considered.  Wright 
v.  Boston,  126  Mass.  161;  Weld  v.  Boston,  126  Mass.  166. 

My  consideration  of  this  case  has  led  me  to  the  conclusion 
that  the  decided  weight  of  the  evidence  tends  rather  to  show  that 
the  petitioner  was  not  a  resident  or  citizen  of  this  state  when  he 
brought  his  suit  than  that  he  was ;  or,  at  least,  that  the  evidence 
leaves  his  claim  in  that  regard  in  a  state  of  so  much  doubt  and  un- 
certainty that  the  court  should  not  in  a  case  like  this,  where  the 
fact  of  citizenship  constitutes  the  sole  ground  of  jurisdiction, 
make  a  decree  attempting  to  fix  and  declare  his  matrimonial  status 

The  petition  must  be  dismissed. 


NATIONALITY 


CITIZENSHIP  AND  RIGHT  OF  EXPATRIATION. 
PEQUIGNOT  v.  CITY  OF  DETROIT,  16  FED.  REP.  211,  (1883). 

On  motion  for  a  New  Trial. 

The  plaintiff  brought  suit  against  the  city  of  Detroit  to  re- 
cover damages  for  personal  injuries  sustained  by  her,  by  reason 
of  a  defective  walk  across  an  alley  which  intersects  Twenty-third 
street,  between  Fort  and  Lafayette.  The  plaintiff  recovered  a  ver- 
dict, and  defendant  moved  for  a  new  trial  upon  the  grounds  stated 
in  the  opinion  of  the  court. 

John  D.  Concly,  for  plaintiff. 

Henry  M.  Dxdheld,  City  Counselor,  for  defendant. 

Brown,  J.  The  first  error  assigned  by  the  defendant  is  based 
upon  the  ruling  of  the  court,  that  the  walk,  upon  which  the  plain- 
tiff met  her  fall,  was  a  crosswalk  and  not  a  sidewalk,  within  the 
meaning  of  the  state  act  of  1879,  No.  244.  This  act,  which  is  en- 
titled "An  act  for  the  collection  of  damages  sustained  by  reason  of 
defective  public  highways,  streets,  bridges,  crosswalks,  and  cul- 
verts," creates  a  liability  in  favor  of  persons  "sustaining  bodily 
injury  upon  any  of  the  public  highways  or  streets  in  this  state,  by 
reason  of  neglect  to  keep  such  public  highways  or  streets,  and  all 
bridges,  crosswalks,  and  culverts  in  good  repair." 

We  acquiesce  in  the  opinion  of  the  supreme  court  in  City  of 
Detroit  v. Putnam,  45  Mich.  263,  [S.C.  7  N.W.Rep.  815,]  that  this 
act  does  not  include  sidewalks.  But  we  cannot  perceive  that  this 
case  has  any  bearing  upon  the  question  under  consideration.  We 
think  the  statute  of  1879  was  intended  to  distinguish  between  those 
portions  of  the  streets  which  the  city  itself  constructs  and  keeps  in 
repair,  and  that  other  portion,  viz.,  sidewalks,  which  it  compels 
property-owners  to  build  and  keep  in  repair,  rendering  the  city 
liable  in  one  case  and  not  in  the  other.  Defendant's  theory  is  that 
the  alley  begins  at  the  outside  of  the  sidewalk.    But  it  seems  quite 


CITIZENSHIP   AND   RIGHT   OF     EXPATRIATION.  105 

clear  that  an  alley,  to  be  serviceable  for  the  passage  of  teams,  must 
begin  at  the  curbstone,  between  the  sidewalk  and  the  street.  Sup- 
pose, for  instance,  that  the  property-owners  upon  the  opposite 
sides  of  an  alley  should  extend  fences  across  the  intervening  space. 
It  is  too  plain  for  argument  that  they  would  be  liable  for  obstruct- 
ing the  alley.  Every  crosswalk  is,  in  one  sense,  a  sidewalk,  be- 
cause it  is  an  extension  of  the  sidewalk  proper  across  an  interven- 
ing space ;  but  it  seems  to  us  to  make  no  difference  whether  it 
crosses  a  street  or  an  alley.  In  each  case  it  crosses  a  highway  for 
the  passage  of  teams,  and  is  a  part  of  the  street  which  the  city  it- 
self builds  and  keeps  in  repair. 

The  main  question  in  this  case,  however,  relates  to  the  alien- 
age of  the  plaintiff,  upon  which  new  affidavits  were  offered  upon 
this  motion.  The  court  charged  upon  the  trial  that  as  the  plaintiff 
was  a  native  of  France,  it  did  not  sufficiently  appear  that  she  had 
ever  become  a  citizen  of  the  United  States.  The  new  affidavits 
show  unequivocally  that  she  at  one  time  did  become  a  citizen  by 
marriage,  but  the  question  still  remains  to  be  determined  whether 
at  the  time  she  brought  this  suit  she  was  an  alien  or  a  citizen. 
Plaintiff  was  born  in  France,  of  rrench  parents,  who  emigrated 
to  this  country  when  she  was  six  or  seven  years  old,  but  were 
never  naturalized.  In  1863  she  was  married  to  James  Partridge, 
who  was  a  native-born  American  citizen,  and  thereby  under  the 
act  of  February  10,  1855,  (reproduced  in  the  Revised  Statutes, 
sec.  1994,)  became  a  citizen  of  the  United  States.  She  lived  with 
Partridge  some  13  or  14  years,  and  was  then  divorced  from  him. 
Shortly  thereafter  she  was  married  to  Augustine  Pequignot,  who 
was  himself  born  in  France  in  1835,  and  has  never  become  an 
American  citizen,  or  even  declared  his  intention  to  do  so.  The 
plaintiff  is  still  living  in  this  state  with  him  as  his  wife. 

The  case  raises  a  novel  and  interesting  question :  whether  an 
alien  woman,  who  has  once  become  an  American  citizen  by  opera- 
tion of  law,  can  resume  her  alienage  by  marriage  to  an  alien  hus- 
band. If  we  are  bound  by  the  case  of  Shanks  v.  Dupont,  3  Pet. 
242,  in  its  literalisms,  then  the  plaintiff  did  not  lose  her  citizenship 
by  marrying  a  native  of  her  country,  an  alien.  In  that  case, 
it  was  held  that  a  native  of  Charleston,  who  married  a  British  offi- 


106  PRIVATE   INTERNATIONAL   LAW. 

cer  in  1781,  during  a  temporary  and  hostile  occupation  of  the  city 
by  the  British,  and  subsequently  went  to  England  with  him  and 
remained  there  until  her  death,  did  not  by  such  marriage  cease  to 
be  a  citizen  of  South  Carolina,  but  that  her  withdrawal  to  Eng- 
land, and  her  permanent  allegiance  to  the  side  of  the  enemies  of 
the  state  down  to  the  time  of  the  treaty  of  peace  in  1783,  operated 
as  a  virtual  dissolution  of  her  allegiance.  On  page  246,  the  court 
briefly  observes  that  the  marriage  with  the  British  officer  did  not 
produce  that  effect,  because  the  marriage  with  an  alien,  whether 
a  friend  or  an  enemv,  produces  no  dissolution  of  the  native  alle- 
giance of  the  wife ;  giving  as  its  reasons  for  this  ruling :  ( 1 )  That 
no  persons  can,  by  any  act  of  their  own,  without  the  consent  of  the 
government,  put  off  their  allegiance  and  become  aliens;  (2)  if  it 
were  otherwise,  then  a  feme  alien  would  by  marriage  become,  ipso 
facto,  a  citizen,  and  would  be  dowable  of  the  estate  of  her  husband, 
which  are  clearly  contrary  to  law. 

Now,  the  general  doctrine  above  stated,  that  no  person  can 
put  off  his  allegiance  without  the  consent  of  the  government,  is  no 
longer  the  law  in  this  country,  since  it  is  expressly  declared  by 
Rev.  St.  sec.  1999 — 

"That  the  right  of  expatriation  is  a  natural  and  inherent  right  of 
all  people,  indispensable  to  the  enjoyment  of  the  rights  of  life,  lib- 
erty, and  the  pursuit  of  happiness ;  and  whereas,  in  the  recognition 
of  this  principle,  this  government  has  freely  received  emigrants 
from  all  nations,  and  invested  them  with  the  rights  of  citizenship ; 
and  whereas,  it  is  claimed  that  such  American  citizens,  with  their 
descendants,  are  subjects  of  foreign  states,  owing  allegiance  to  the 
government  thereof;  and  whereas,  it  is  necessary  to  the  mainte- 
nance of  public  peace  that  this  claim  of  foreign  allegiance  should 
be  promptly  and  finally  disavowed;  therefore,  any  declaration,  in- 
struction, opinion,  order,  or  decision  of  any  officer  of  the  United 
States  which  denies,  restricts,  impairs,  or  questions  the  right  of 
expatriation,  is  declared  inconsistent  with  the  fundamental  rules 
of  the  republic." 

The  second  reason,  too,  is  no  longer  law,  since  by  the  act  of 
February  10,  1855,  (Rev.  St.  sec.  1994,)  "any  woman  who  is  now 
or  may  hereafter  be  married  to  a  citizen  of  the  United  States,  and 


CITIZENSHIP   AND   RIGHT   OF    EXPATRIATION.  107 

who  might  herself  be  naturalized,  shall  be  deemed  a  citizen."  It 
seems  to  me,  therefore,  that  we  ought  to  apply  the  maxim  "ces- 
sante  ratione,  cessat  lex"  to  this  case,  and  are  not  bound  to  treat 
it  as  controlling  authority.  It  seems  to  me,  too,  that  we  should 
regard  the  sections  above  quoted  as  announcing  the  views  of  con- 
gress upon  this  branch  of  international  law,  and  ought  to  apply  the 
same  rule  of  decision  to  a  case  where  a  female  American  citizen 
marries  an  alien  husband,  that  we  should  to  a  case  where  an  alien 
woman  marries  an  American  citizen. 

It  is  satisfactory,  though  perhaps  not  important,  to  know  that 
the  French  law  upon  this  subject  is  the  same  as  ours.  In  the  Civil 
Code  of  France,  book  I,  tit.  I,  sec.  12,  it  is  declared  that  "a  foreign 
woman  who  shall  have  married  a  Frenchman  shall  follow  the  con- 
dition of  her  husband ;"  and  in  England  it  is  enacted  by  the  six- 
teenth section  of  7  &  8  Vict.  c.  66,  (1844,)  "that  any  woman  mar- 
ried, or  who  shall  be  married,  to  a  natural-born  subject  or  a  per- 
son naturalized,  shall  be  deemed  and  taken  to  be  herself  natural- 
ized, and  have  all  the  rights  and  privileges  of  a  natural-born  sub- 
ject." While  I  am  unable  to  see  how  the  law  of  France  can  fix 
the  status  of  the  plaintiff  in  this  country,  concurring  in  this  respect 
with  the  opinion  of  Atty.  Gen.  Hoar,  (13  Op.  Atty.  Gen.  91,)  I 
see  no  reason  why  we  should  not  apply  the  same  law  to  wives  of 
alien  husbands  in  this  country  that  we  do  to  American  women 
marrying  abroad.  The  fact  that  the  French  law  corresponds  with 
our  own  upon  this  subject,  however,  is  an  additional  argument  for 
the  same  application  of  the  statute  to  citizens  of  both  powers. 

The  only  complication  in  this  case  is  that  the  marriage  took 
place  and  the  parties  reside  in  this  country;  but,  while  residence 
undoubtedly  creates  a  presumption  of  citizenship,  (State  v.  Beack- 
mo,  6  Blackf.  488,)  it  is  merely  prima  facie  evidence,  and  may 
easily  be  rebutted.  Suppose,  for  example,  that  an  American  citi- 
zen residing  in  France  should  marry  a  French  woman,  would  she 
not  thereby  become  an  American  citizen,  and  remain  so  though 
they  continued  to  reside  in  France  ?  There  is  no  exception  in  the 
statute  of  marrying  foreign  women  and  residing  abroad,  and  I 
know  of  no  authority  for  interpolating  one.  It  is  true  that  section 
1994  limits  the  right  of  any  woman,  marrying  a  citizen  of  the  Uni- 


108  PRIVATE   INTERNATIONAL  LAW. 

ted  States,  to  be  deemed  a  citizen,  to  one  "who  might  herself  be 
lawfully  naturalized,"  and  it  was  at  one  time  an  open  question 
whether  the  woman  must  not  herself  have  resided  within  the  Uni- 
ted States  for  five  years  before  she  could  be  deemed  an  American 
citizen. 

In  Burton  v.  Burton,  i  Keyes,  359,  the  judges  of  the  court  of 
appeals  of  the  court  of  New  York  seemed  to  be  divided  in  opinion 
upon  this  point.  Mr.  Justice  Mullen  (p.  362)  says  that  "if  a 
residence  for  five  years  was  not  a  condition  precedent  to  citizen- 
ship, residence  for  some  length  of  time  was  most  obviously  con- 
templated." "Without  residence  she  could  not  be  naturalized, 
and  it  is  the  most  essential  of  all  the  requirements  for  naturaliza- 
tion, and  cannot  be  dispensed  with,  unless  the  intention  to  dispense 
with  it  is  most  clearly  manifested  by  the  legislature."  Upon  the 
other  hand,  Mr.  Justice  Wright  (p.  374)  thought  that  the  act  did 
not  require  that  the  woman  claiming  its  benefits  should  have  re- 
sided within  the  United  States ;  and,  if  it  did,  he  thought  the  resi- 
dence of  the  plaintiff  was,  by  construction  of  law,  the  same  as  that 
of  her  husband.  All  doubt  upon  the  construction  to  be  placed 
upon  the  words,  "who  might  herself  be  naturalized,"  was  put  at 
rest  by  the  case  of  Kelly  v.  Owen,  7  Wall.  496,  in  which  it  was 
held  that  these  terms  only  limited  the  application  of  the  law  to 
"free  white  women,"  inasmuch  as  the  naturalization  act  existing 
at  the  time  only  required  that  a  person  applying  for  its  benefits 
should  be  a  "free  white  person,"  and  not  an  alien  enemy.  Since 
this  case  was  decided  the  provision  has  been  still  further  restricted 
by  section  2169,  which  admits  aliens  of  African  nativity  and  per- 
sons of  African  descent  to  naturalization.  This  opinion,  however, 
does  not  cover  the  case  of  residence  abroad. 

In  an  opinion  of  Atty.  Gen.  Williams,  (14  Op.  Atty.  Gen. 
402,)  he  held  directly  that  an  alien  woman  who  has  intermarried 
with  a  citizen  of  the  United  States  residing  abroad,  the  marriage 
having  been  solemnized  abroad,  and  the  parties  after  marriage 
continuing  to  reside  abroad,  is  to  be  regarded  as  a  citizen  of  the 
United  States  within  the  meaning  of  said  act,  though  she  may  not 
have  resided  within  the  United  States.  So,  also,  in  opinion  de- 
livered in  1869,  Atty.  Gen.  Hoar  decided  that  a  woman  born  in  the 


CITIZENSHIP   AND   RIGHT   OF   EXPATRIATION.  109 

United  States,  but  married  to  a  citizen  of  France  and  domiciled 
there,  was  not  "a  citizen  of  the  United  States  residing  abroad," 
within  the  meaning  of  the  internal-revenue  law.  It  seems  from 
the  opinion  that  prior  to  this  Atty.  Gen.  Stanbery  had  made  a  simi- 
law  decision.  Upon  the  contrary,  Atty.  Gen.  Bates  decided  in 
1862,  (10  Opp.  Atty.  Gen.  321,)  that  a  woman  born  in  this  coun- 
try, who  married  a  Spanish  subject  residing  here  and  then  re- 
moved to  Spain  with  her  husband  and  child,  and  subsequently  died 
there,  was  still  an  American  citizen  at  her  death.  He  held  that  the 
removal  of  the  lady  and  her  daughter  to  Spain,  and  their  residence 
there,  were  no  evidence  of  an  attempt  to  expatriate  themselves.  I 
think  it  would  be  difficult  to  give  any  sound  reason  for  this  conclu- 
sion. Another  case,  almost  precisely  like  the  one  under  consid- 
eration, was  decided  by  Atty.  Gen.  Taft  (15  Op.  Atty  Gen.  599) 
in  favor  of  plaintiff's  citizenship,  upon  the  single  authority  of 
Shanks  v.  Dupont,  3  Pet.  342.  These  two  cases  are  irreconcilable 
with  the  others,  and  are  unsatisfactory  to  my  mind.  In  Kane  v. 
McCarthy,  63  N.  C.  299,  it  was  held  that  a  woman  who  in  1857 
had  married  in  Ireland  a  naturalized  citizen  of  the  United  States, 
could  inherit  property,  although  she  had  always  resided  in  Ire- 
land, and  continued  to  do  so  until  after  descent  cast. 

It  will  be  noticed  that  legislation  upon  the  subject  of  naturali- 
zation is  constantly  advancing  towards  the  idea  that  the  husband, 
as  the  head  of  the  family,  is  to  be  considered  its  political  represen- 
tative, at  least  for  the  purposes  of  citizenship,  and  that  the  wife 
and  minor  children  owe  their  allegiance  to  the  same  sovereign 
power.  The  act  of  April,  1802,  Rev.  St.  2172,  has  declared  that 
the  minor  children  of  naturalized  persons  should  be  considered  as 
citizens  of  the  United  States.  Then  in  1804  (section  2168)  it  was 
enacted  that  if  any  alien  has  declared  his  intention  of  becoming  a 
citizen,  and  dies  before  he  is  actually  naturalized,  his  widow  and 
children  shall  be  considered  as  citizens,  upon  taking  the  oath  pre- 
scribed by  law ;  and  finally,  by  the  act  of  1855,  Rev.  St.  sec.  1994, 
that  an  alien  woman  married  to  a  citizen  shall  herself  be  deemed 
a  citizen. 

Now,  if  we  concede  that  a  French  woman  marrying  an 
American  citizen  abroad  thereby  becomes  an  American  citizen,  I 


110  PRIVATE   INTERNATIONAL   LAW. 

see  no  reason  why  the  same  law  should  not  be  administered  here ; 
and  whenever  an  American  citizen,  especially  if  she  be  originally 
a  native  citizen  of  France,  marries  a  French  citizen  here,  she 
should  not  be  deemed  and  taken  to  be  a  citizen  of  the  French  re- 
public. If  she  be  an  American  citizen,  it  must  be  upon  the  theory, 
either  that  the  residence  of  the  wife  is  essential  to  citizenship,  or 
that  we  should  apply  a  different  interpretation  when  an  alien  wo- 
man claims  citizenship  by  operation  of  law  from  that  applied 
where  a  native-born  one  claims  expatriation  by  operation  of  the 
same  law.  Putting  the  converse  of  the  case  under  consideration, 
suppose  a  native  American  woman  were  to  go  to  Paris  and  marry 
a  Frenchman.  By  the  statutes  of  both  countries  she  would  there- 
by become  a  French  citizen.  But  subsequently  her  husband  dies, 
and  she  is  married  again  to  a  native-born  citizen  of  the  United 
States  residing  in  Paris.  I  think  there  would  be  little  hesitation 
in  holding  that  she  was  reinstated  in  her  allegiance  to  her  native 
land. 

It  is  true  that  the  law  of  France  upon  this  subject  has  not 
been  proved  before  us  as  a  fact,  but  a  copy  of  the  Code  Napoleon, 
purporting  to  issue  from  the  publishing  house  of  the  council  of 
state,,  at  Paris,  and  bearing  all  the  marks  of  authenticity,  was  pro- 
duced and  commented  upon  by  counsel,  without  objection  upon 
the  hearing  of  this  motion,  and  I  think  it  is  too  late  now  to  object 
to  this  evidence,  although  upon  a  trial  before  a  jury  it  could  not  be 
received.  The  granting  of  new  trials  being  largely  matter  of  dis- 
cretion, I  would  not  decline  to  receive  as  the  law  of  a  foreign 
country  that  which  could  be  proved  as  such  by  the  mere  authenti- 
cation of  a  book. 

Upon  the  whole  case,  then,  I  have  come  to  the  conclusion  that 
plaintiff,  being  a  native  of  France,  and  becoming  a  citizen  of  the 
United  States  by  her  first  marriage,  resumed  her  allegiance  to  her 
native  country  by  marrying  a  French  citizen,  and  is  therefore  an 
alien,  entitled  to  bring  this  suit.  The  motion  for  a  new  trial  must 
be  denied. 


ALIEN     ENEMIES.  Ill 

ALIEN   ENEMIES. 
CLARK  v.  MOREY,  10  JOHNS  (N.  Y.)  69,  (1813). 

This  was  an  action  of  assumpsit,  on  a  promissory  note  made 
by  the  defendant  to  the  plaintiff,  dated  the  5th  June,  181 1,  for  209 
dollars  and  50  cents,  payable  on  demand.  The  declaration  was 
filed  in  May  term,  1812.  In  August  term  last  the  defendant 
pleaded,  1.  Non  assumpsit;  2.  That  the  plaintiff  ought  not  to  have 
and  maintain  his  action,  &c,  because,  the  defendant  says,  that  the 
plaintiff  is  an  alien,  born  in  foreign  parts,  out  of  the  allegiance  of 
the  United  States  of  America,  and  within  the  allegiance  of  a  for- 
eign state,  to  wit,  of  the  united  kingdom  of  Great  Britain  and 
Ireland,  and  not  made  a  citizen  of  the  United  States  of  America, 
by  naturalization,  or  otherwise,  to  wit,  at,  &c.  And  that  the  per- 
sons exercising  the  powers  of  government  in  the  said  foreign 
state,  the  united  kingdom  of  Great  Britain  and  Ireland  aforesaid, 
are  at  war  with,  and  enemies  of,  the  United  States  of  America,  to 
wit,  at,  &c,  and  that  the  said  plaintiff,  so  being  such  alien  born, 
&c.  and  an  enemy  of  the  United  States  of  America,  and  not  made 
a  citizen  by  naturalization,  or  otherwise,  entered  and  came  into  the 
United  States  of  America,  and  still  remains  therein,  without  any 
letters  of  safe  conduct  from  the  President  of  the  United  States 
of  America,  or  any  license  to  be,  reside  or  remain  in  these  United 
States  of  America:  And  this  the  said  defendant  is  ready  to  verify, 
wherefore  he  prays  judgment  if  the  said  plaintiff  ought  further 
to  have  or  maintain  his  aforesaid  action  thereof  against  him,"  &c. 

To  this  plea  there  was  a  demurrer,  and  joinder  in  demurrer. 

The  cause  was  submitted  to  the  court  without  argument. 

Kent,  Ch.  J.  delivered  the  opinion  of  the  court.  The  second 
plea  states  that  the  plaintiff  is  an  alien,  born  out  of  the  allegiance 
of  the  United  States,  and  under  the  allegiance  of  the  king  of  the 
united  kingdom  of  Great  Britain  and  Ireland,  and  not  naturalized, 
and  that  war  exists  between  the  United  States  and  the  said  king- 
dom ;  and  that  the  plaintiff  came  into  the  United  States  and  re- 
mains here  without  any  letters  of  safe  conduct  from  the  President 
of  the  United  States,  or  any  license  to  remain  here. 


112  PRIVATE   INTERNATIONAL  LAW. 

This  plea  is  not  without  precedent  in  the  English  books ; 
(Rast.  Ent.  252.  b.  605.  b.  Denier  v.  Amaud,  4  Mod.  405.  the 
record  of  which  plea  Lord  Kenyon,  in  8  Term  Rep.  167,  says  he 
had  examined;)  but  there  are  many  and  weighty  reasons  why  it 
cannot  be  supported.  To  render  the  plea  of  alien  enemy  good,  it 
seems  now  to  be  understood  to  be  the  law  of  England  that  the  plea 
must  not  only  aver  that  the  plaintiff  was  an  alien  enemy,  but  that 
he  was  adhering  to  the  enemy.  The  disability  is  confined  to  these 
two  cases;  1.  Where  the  right  sued  for  was  acquired  in  actual 
hostility,  as  was  the  case  of  the  ransom  bill  in  Anthon  v.  Fisher; 
(Doug.  649.  note.)  2.  Where  the  plaintiff,  being  an  alien  enemy, 
was  resident  in  the  enemy's  country;  such  was  the  form  of  the 
plea  in  George  v.  Powell,  (Fortesc.  221.)  and  in  Le  Bret  v.  Papil- 
lon;  (4  East,  502.)  and  such  was  the  case  with  the  persons  in 
whose  behalf,  and  for  whose  benefit,  the  suit  was  brought  upon 
the  policy,  in  Brandon  v.  Nesbitt.     (6  Term  Rep.  23.) 

It  was  considered  in  the  common  pleas,  at  Westminster,  as  a 
settled  point,  (Heath,  J.  and  Rooke,  J.  in  Sparenburgh  v.  Banna- 
tyne,  1  Bos.  &  Pull.  163.)  that  an  alien  enemy  under  the  king's 
protection,  even  if  he  were  a  prisoner  of  war,  might  sue  and  be 
sued.  This  point  had  long  before  received  a  very  solemn  decision 
in  the  case  of  Wells  v.  Williams.  (1  Ld.  Raym.  282.  1  Lutw.  34. 
S.  C.  1  Salk.  46.)  It  was  there  decided  that  if  the  plaintiff  came 
to  England  before  the  war,  and  continued  to  reside  there,  by  the 
license  and  under  the  protection  of  the  king,  he  might  maintain 
an  action  upon  his  personal  contract ;  and  that  if  even  he  came  to 
England  after  the  breaking  out  of  the  war,  and  continued  there 
under  the  same  protection,  he  might  sue  upon  his  bond  or  con- 
tract ;  and  that  the  distinction  was  between  such  an  alien  enemy, 
and  one  commorant  in  his  own  country.  The  plea,  in  that  case, 
averred  that  the  plaintiff  was  not  only  born  in  France,  under  the 
allegiance  of  the  French  king,  ther  being  an  enemy,  but  that  he 
came  to  England,  without  any  safe  conduct,  and  the  plea  was  held 
bad  on  demurrer.  It  was  considered,  that  if  the  plaintiff  came  to 
England  in  time  of  peace,  and  remained  there  quietly,  it  amounted 
to  a  license,  and  that  if  he  came  over  in  time  of  war,  and  continued 
without  disturbance,  a  license  would  be  intended.     It  is,  therefore, 


ALIEN    ENEMIES.  113 

not  sufficient  to  state  that  the  plaintiff  came  here  without  safe  con- 
duct. The  plea  must  set  forth,  affirmatively,  every  fact  requisite 
to  prove  that  the  plaintiff  has  no  right  of  action.  It  is  not  to  be 
favoured  by  intendment.  This  was  the  amount  of  the  decision 
in  Cassercs  v.  Bell;  (8  Term  Rep.  166,)  and  one  of  the  judges,  in 
that  case,  referred  to  the  decision  in  Wells  v.  Williams,  as  author- 
ity, and  so  it  has  uniformly  been  considered  in  all  the  books ;  and 
all  the  former  precedents  and  dicta  that  are  repugnant  to  it  may  be 
considered  as  overruled.  Though  there  is  a  loose  and  unsatisfac- 
tory note  of  Sylvester's  Case,  in  7  Mod.  150,  which  was  a  few 
years  later,  and  looks  somewhat  to  the  contrary;  yet  it  never  has 
been  considered  as  affecting  the  former  decision  Indeed,  the  law 
on  this  subject  has  undergone  a  progressive  improvement.  The 
doctrine  once  held  in  the  English  courts,  that  an  alien's  bond  be- 
came forfeited  by  the  war,  (Year  Book,  19  Edw.  IV.  pi.  6.)  would 
not  now  be  endured.  The  plea  is  called  in  the  books  an  odious 
plea,  and  the  latter  cases  concur  in  the  opinion  that  the  ancient 
severities  of  war  have  been  greatly  and  justly  softened,  by  modern 
usages,  the  result  of  commerce  and  civilization. 

In  the  case  before  us,  we  are  to  take  it  for  granted  (for  the 
suit  was  commenced  before  the  present  war)  that  the  plaintiff 
came  to  reside  here  before  the  war,  and  no  letters  of  safe  conduct 
were,  therefore,  requisite,  nor  any  license  from  the  president.  The 
license  is  implied  by  law  and  the  usage  of  nations ;  if  he  came  here 
since  the  war,  a  license  is  also  implied,  and  the  protection  contin- 
ues until  the  executive  shall  think  proper  to  order  the  plaintiff  out 
of  the  United  States;  but  no  such  order  is  stated  or  averred.  This 
is  the  evident  construction  of  the  act  of  congress  of  the  6th  July, 
1798,  entitled  "An  act  respecting  alien  enemies."  (Sess.  1.  cong. 
5.  c.  73.)  Until  such  order,  the  law  grants  permission  to  the 
alien  to  remain,  though  his  sovereign  be  at  war  with  us.  A  lawful 
residence  implies  protection,  and  a  capacity  to  sue  and  be  sued. 
A  contrary  doctrine  would  be  repugnant  to  sound  policy,  no  less 
than  to  justice  and  humanity. 

The  right  to  sue,  in  such  a  case,  rests  on  still  broader  ground 
than  that  of  a  mere  municipal  provision,  for  it  has  been  frequently 
held  that  the  law  of  nations  is  part  of  the  common  law.     By  the 


114  PRIVATE    INTERNATIONAL   LAW. 

law  of  nations,  an  alien  who  comes  to  reside  in  a  foreign  country, 
is  entitled,  so  long  as  he  conducts  himself  peaceably,  to  continue 
to  reside  there,  under  the  public  protection ;  and  it  requires  the  ex- 
press will  of  the  sovereign  power  to  order  him  away.  The  rigour 
of  the  old  rules  of  war  no  longer  exists,  as  Bynkershoek  admits, 
when  wars  are  carried  on  with  the  moderation  that  the  influence 
of  commerce  inspires.  It  may  be  said  of  commerce,  as  Ovid  said 
of  the  liberal  arts :  Emollit  mores,  nee  sinit  esse  feros. 

We  all  recollect  the  enlightened  and  humane  provision  of 
Magna  Charta  (c.  30.)  on  this  subject;  and  in  France  the  ordi- 
nance of  Charles  V.  as  early  as  1370,  was  dictated  with  the  same 
magnanimity ;  for  it  declared  that  in  case  of  war,  foreign  mer- 
chants had  nothing  to  fear,  for  they  might  depart  freely  with  their 
effects,  and  if  they  happened  to  die  in  France,  their  goods  should 
descend  to  their  heirs.  (Henault's  Abrege  Chron.  torn.  1.  338.) 
So  all  the  judges  of  England  resolved,  as  early  as  the  time  of 
Henry  VIII.  that  if  an  alien  came  to  England,  before  the  declara- 
tion of  war,  neither  his  person,  nor  his  effects,  should  be  seized  in 
consequence  of  it.  (Bro.  tit.  Property,  pi.  38.  Jenk.  Cent.  201. 
Case  22.)  And  it  has  now  become  the  sense  and  practice  of  na- 
tions, and  may  be  regarded  as  the  public  laic  of  Europe,  (the 
anomalous  and  awful  case  of  the  present  violent  power  on  the  con- 
tinent excepted.)  that  the  subjects  of  the  enemy,  (without  confin- 
ing the  rule  to  merchants,)  so  long  as  they  are  permitted  to  re- 
main in  the  country,  are  to  be  protected  in  their  persons  and  prop- 
erty, and  to  be  allowed  to  sue  as  well  as  to  be  sued.  (Bynk. 
Quaest.  Jur.  Pub.  b.  1.  c.  7.  c.  25.  s.  8.)  It  is  even  held,  that  if 
they  are  ordered  away,  in  consequence  of  the  war,  they  are  still 
entitled  to  leave  a  power  of  attorney,  and  to  collect  their  debts  by 
suit.     (Emcrigan,  Traite  des  Assurances,  torn.  1.  567. ) 

Modern  treaties  have  usually  made  provision  for  the  case  of 
aliens  found  in  the  country,  at  the  declaration  of  war,  and  have 
allowed  them  a  reasonable  time  to  collect  their  effects  and  remove. 
Bxnkcrshoek  gives  instances  of  such  treaties,  existing  above  two 
centuries  ago ;  and  for  a  century  past,  such  a  provision  has  become 
an  established  formula  in  the  commercial  treaties.  Emerigon, 
who  has  examined  this  subject  with  the  most  liberal  and  enlight- 


ALIEN     ENEMIES.  115 

cned  views,  considers  these  treaties  as  an  affirmance  of  common 
right,  or  the  public  law  of  Europe,  and  the  general  rule  is  so  laid 
down  by  the  later  publicists,  in  conformity  with  this  provision. 
(J\ittcl,  b.  3.  c.  4.  s.  63.  Le  Droit  Public  de  L' Europe,  par  Mably. 
Oeuvres,  torn.  6.  334.)  Some  of  these  treaties  have  provided  that 
foreign  subjects  should  be  permitted  to  remain  and  continue  their 
business,  notwithstanding  a  rupture  between  the  governments,  so 
long  as  they  behave  peaceably;  {Treaty  of  Commerce  between 
Great  Britain  and  France,  in  1786,  and  of  Amity  and  commerce 
between  Great  Britain  and  the  United  States,  in  1794;)  and  where 
there  was  no  such  treaty,  the  permission  has  been  frequently  an- 
nounced in  the  very  declaration  of  war.  Sir  Michael  Foster  (Dis- 
course of  High  Treason,  185,  186.)  mentions  seve-.^l  instances  of 
such  declarations ;  and  he  says  that  the  aliens  were  thereby  enabled 
to  acquire  personal  chattels,  and  to  maintain  actions  for  the  re- 
covery of  their  personal  rights,  in  as  full  a  manner  as  alien  friends. 
The  act  of  congress  of  July,  1798,  before  alluded  to,  provides,  in 
cases  where  there  may  be  no  existing  treaty,  a  reasonable  time, 
to  be  ascertained  and  declared  by  the  president,  to  alien  enemies 
resident  at  the  opening  of  the  war,  "for  the  recovery,  disposal  and 
removal  of  their  goods  and  effects."  This  statute  may  be  consid- 
ered, in  this  respect,  as  a  true  exposition  and  declaration  of  the 
modern  law  of  nations. 

The  opinion  that  wars  ought  not  to  interfere  with  the  security 
and  collection  of  debts  has  been  constantly  gaining  ground,  and 
the  progress  of  this  opinion  is  worthy  of  notice,  as  it  will  teach 
us  with  what  equity  and  liberality,  and  with  what  enlarged  views 
of  national  policy,  the  question  has  been  treated.  A  right  to  con- 
fiscate the  debts  due  to  the  enemy  was  the  rigorous  doctrine  of  the 
ancient  law ;  but  a  temporary  disability  to  sue,  was  all  Grotius  (b 
3.  c.  20.  s.  16.)  seemed  willing  to  allow  to  hostilities.  Since  his 
time,  continued  and  successful  efforts  have  been  made  to  strength- 
en justice,  to  restrain  the  intemperance  of  war,  and  to  promote  the 
intercourse  and  happiness  of  mankind.  The  power  to  collecj 
debts,  notwithsanding  the  event  of  war,  is  not  an  unusual  provi- 
sion in  the  conventional  law  of  nations.  In  the  treaty  of  com- 
merce between  England  and  France,  in  1713,  it  was  provided  by 


116  PRIVATE    INTERNATIONAL  LAW. 

the  2d  article,  that  in  case  of  war,  the  subjects  of  each  power  re- 
siding in  the  dominions  of  the  other,  should  be  allowed  six 
months  to  retire  with  their  property,  and  in  the  mean  time,  should 
be  at  full  liberty  to  dispose  of  the  same,  "and  the  subjects  on  each 
side  were  to  have  and  enjoy  good  and  speedy  justice,  so  that  dur- 
ing the  said  space  of  six  months  they  may  be  able  to  recover  their 
goods  and  effects."  So  also  in  the  treaty  of  commerce  between 
Li  re  at  Britain  and  Russia,  in  1766,  and  again  in  1797,  it  was  pro- 
vided, that  in  case  of  war,  the  subjects  of  each  were  to  be  allowed 
one  year  to  withdraw  with  their  property ;  and  the\  were  also  au  • 
thorized  to  substitute  others  to  collect  their  debts  for  their  benefit, 
''which  debts  the  debtors  should  be  oblige^  to  pay  in  the  same 
manner  as  if  no  such  rupture  had  happened."  A  similar  provi- 
sion, in  substance,  was  inserted  in  the  treaty  between  the  United 
States  and  Russia,  in  1785;  and  in  the  treaty  of  commerce  be- 
tween the  United  States  and  Great  Britain,  in  1795,  the  govern- 
ment of  each  country  was  prohibited  to  interfere,  either  by  con- 
fiscation or  sequestration,  with  private  contracts,  and  it  was  ex- 
pressly declared  to  be  unjust  and  impolitic,  that  the  debts  of  in- 
dividuals should  be  impaired  by  national  differences. 

The  case  before  us  does  not  raise  the  question,  nor  do  we  give 
any  opinion  in  favour  of  the  right  of  action  by  aliens  who  resided 
in  the  enemy's  country  when  war  was  declared,  and  when  the  ac- 
tion was  commenced.  The  cases  appear  to  be  against  such  right. 
But  as  to  aliens  who  were  residents  with  us  when  the  war  broke 
out,  or  who  have  since  come  to  reside  here,  by  a  presumed  per- 
mission, the  authorities  seem  to  be  decisive.  And  whether  we 
consider  this  case  in  reference  to  the  decisions  of  the  English 
courts,  to  the  act  of  congress,  or  to  the  sense  of  European  nations, 
declared  in  their  treaties,  and  by  their  writers  on  public  law,  the 
plea  must  be  overruled;  and  the  plaintiff  is  entitled  to  judgment, 

upon  his  demurrer. 

Judgment  for  the  plaintiff. 


ALIEN  ENEMIES.  117 

THE  VENUS,  8  CRANCH  253,  (1814), 

Appeal  from  the  sentence  of  the  Circuit  Court  for  the  dis- 
trict of  Massachusetts.  The  following  were  the  facts  of  the  case, 
as  stated  by  Washington,  J.,  in  delivering  the  opinion  of  the 
court. 

This  is  the  case  of  a  vessel  which  sailed  from  Great  Britain, 
with  a  cargo  belonging  to  the  respective  claimants,  as  was  con- 
tended, before  the  declaration  of  war  by  the  United  States  against 
Great  Britain  was  or  could  have  been  known  by  the  shippers.  She 
sailed  from  Liverpool,  on  the  4th  of  July,  1812,  under  a  British 
license,  for  the  port  of  New  York,  and  was  captured,  on  the  6th 
of  August,  18 12,  by  the  American  privateer  Dolphin,  and  sent 
into  the  district  of  Massachusetts,  where  the  vessel  and  cargo  were 
libelled  in  the  district  court. 

The  ship,  100  casks  of  white  lead,  150  crates  of  earthenware, 
35  cases  and  3  casks  of  copper,  9  pieces  of  cotton  bagging,  and  a 
quantity  of  coal,  were  claimed  by  Lenox  &  Maitland.  198  Pack- 
ages of  merchandise  and  25  pieces  of  cotton  bagging  were  claimed 
by  Jonathan  Amory,  as  the  joint  property  of  James  Lenox,  Wil- 
liam Maitland  and  Alexander  McGregor;  not  distinguishing  the 
proportions  of  each:  but  the  25  pieces  of  cotton  bagging  were 
afterwards  claimed  for  McGregor  as  his  sole  property,  and  also 
5  trunks  of  merchandise.  21  trunks  of  merchandise  were  claimed 
by  James  Magee,  of  New  York,  as  the  joint  property  of  himself 
and  John  S.  Jones,  residing  in  Great  Britain. 

The  district  court,  on  the  preparatory  evidence,  decreed  resti- 
tution to  Magee  &  Jones,  and  also  to  Lenox  &  Maitland,  except  as 
to  the  100  casks  of  white  lead ;  as  to  which,  and  as  to  the  claim  of 
McGregor,  further  proof  was  ordered.  From  this  decree,  so  far 
as  it  ordered  restitution  of  the  merchandize  to  Magee  &  Jones,  and 
to  Maitland,  and  of  the  ship  to  Lenox  &  Maitland,  the  captors 
appealed  to  the  circuit  court,  where  the  decree  was  affirmed  pro 
forma,  and  an  appeal  was  taken  to  this  court. 

In  April,  1813,  the  cause  was  heard,  on  further  proof,  in  the 
district  court ;  and  in  August,  the  claim  of  McGregor  was  re- 
jected, as  well  as  that  of  Lenox  &  Maitland  to  the  white  lead.    But 


118  PRIVATE    INTERNATIONAL   LAW. 

at  another  day,  on  a  further  hearing,  the  court  ordered  restitution 
to  McGregor  of  one-fourth  of  the  property  claimed  by  him,  and 
condemned  the  other  three-fourths  as  belonging  to  his  partners, 
being  British  subjects.  Both  parties  appealed,  as  did  also  Lenox 
&  Maitland,  in  relation  to  the  white  lead.  A  pro  forma  decree  of 
affirmance  was  made,  from  which  an  appeal  was  taken  to  this 
court. 

Maitland,  McGregor  and  Jones  were  native  British  subjects, 
who  came  to  the  United  States,  many  years  prior  to  the  present 
war,  and,  after  the  regular  period  of  residence,  were  admitted  to 
the  rights  of  naturalization.  Some  time  after  this,  but  long  prior 
to  the  declaration  of  war,  they  returned  to  Great  Britain,  settled 
themselves  there,  and  engaged  in  the  trade  of  that  country,  where 
they  were  found  carrying  on  their  commercial  business,  at  the 
time  these  shipments  were  made,  and  at  the  time  of  the  capture. 
Maitland  is  yet  in  Great  Britain,  but  has,  since  he  heard  of  the 
capture,  expressed  his  anxiety  to  return  to  the  United  States;  but 
has  been  prevented  from  doing  so,  by  various  causes  set  forth  in 
his  affidavit.  McGregor  actually  returned  to  the  United  States 
some  time  in  May  last ;  Jones  is  still  in  England. 

Saturday,  March  12th,  1814.  (Absent,  Livingston,  J.) 
Washington,  J.,  after  stating  the  facts  of  the  case,  delivered  the 
opinion  of  the  majority  of  the  court,  as  follows : — The  claims  of 
Maitland,  McGregor  and  Jones  are  resisted,  in  toto,  upon  an  ob- 
jection to  the  national  character  of  the  claimants.  The  general 
question  affecting  these  parties,  will,  for  the  present,  be  postponed, 
in  order  to  dispose  of  particular  objections  which  are  made  to  all 
the  claims,  either  in  whole  or  in  part,  and  which  will  depend  on 
the  particular  circumstances  applying  to  those  cases. 

1.  The  first  claim  that  will  be  considered  will  be  that  of 
Lenox  &  Maitland  to  the  100  casks  of  white  lead,  which,  it  is  con- 
tended, is  the  property  of  Thomas  Hollo  way,  an  acknowledged 
British  subject,  but  s.iipped  in  June,  1812,  by  William  Maitland 
&  Co.  (a  house  established  in  Liverpool,  and  composed  of  William 
Maitland  and  James  Lenox)  ,to  Lenox  &  Maitland,  a  house  estab- 
lished at  New  York,  and  composed  of  the  same  parties.  To  es- 
tablish the  fact  of  propertv  in  Thomas  Holloway,  the  captor  relies- 


ALIEN     ENEMIES.  119 

upon  the  following  evidence :  The  original  bill  of  parcels,  inclosed 
in  a  letter,  under  date  of  the  3d  of  July,  1812,  from  William  Mait- 
land  &  Co.  to  Lenox  &  Maitland,  which  is  headed  thus,  "Thomas 
Holloway  bought  of  Thomas  Walker  &  Co.,  lead  merchants,"  dated 
June  2d,  1812.  In  corroboration  of  this  prima  facie  evidence  of 
property  in  Holloway,  the  freight  and  primage  of  this  lead  is  cast 
in  the  margin  of  the  bill  of  lading,  but  not  so  upon  the  acknowl- 
edged property  of  Lenox  &  Maitland,  the  owners  of  the  ship,  and 
included  in  the  same  bill  of  lading ;  from  which  circumstances,  it 
is  argued,  that  this  article  did  not  belong  to  Lenox  &  Maitland : 
since,  if  it  did,  no  freight  could  have  been  charged  on  it,  any  more 
than  upon  the  other  parts  of  the  cargo  claimed  by  them.  In  addi- 
tion to  this,  in  a  list  of  goods  shipped  by  William  Maitland  &  Co. 
by  this  vessel,  on  account  of  and  consigned  to  Lenox  &  Maitland, 
and  inclosed  in  a  letter  of  the  22d  August,  1812,  from  the  former 
to  the  latter,  by  the  Lady  Gallatin,  all  the  goods  claimed  by  that 
house  separately,  and  also  by  them  and  McGregor  jointly,  are 
enumerated,  except  this  parcel  of  white  lead.  This  evidence  is 
certainly  very  strong  to  fix  a  hostile  character  on  this  property, 
and  it  is  rendered  conclusive,  by  the  omission  of  Maitland,  in  his 
affidavit  made  under  the  order  for  further  proof,  to  say  anything 
in  relation  to  the  white  lead,  although  he  is  very  particular  as  to 
all  the  other  property  claimed  by  Lenox  &  Maitland,  and  by  that 
house  jointly  with  McGregor.  This  court  is,  therefore,  of  opin- 
ion, that  the  court  below  did  right  in  rejecting  this  claim. 

2.  The  next  claim  to  be  considered  is  that  of  Magee  &  Jones 
to  a  part  of  the  cargo  on  board  this  vessel.  Magee  is  a  citizen  of 
the  United  States,  settled  in  New  York,  and  connected  with  Jones 
in  a  house  of  trade.  It  is  urged  by  the  captors,  that  the  whole  of 
this  property  ought  to  have  been  condemned  as  the  sole  property 
of  Jones.  The  bill  of  lading  of  these  goods  expresses  them  to  be 
shipped  by  McGregor  &  Co.,  unto  and  on  account  of  James  Magee 
&  Co.,  of  New  York.  The  invoice  is  signed  by  Jones,  at  Man- 
chester, in  England,  and  describes  them  as  goods  to  be  shipped 
on  board  the  Venus,  and  to  be  consigned  to  James  Magee  &  Co., 
of  New  York;  but  it  does  not  specify  on  whose  account  and  risk. 
In  a  letter  from  Jones  to  Magee,  dated  the  1st  of  July,  1812,  cov- 


120  PRIVATE    INTERNATIONAL   LAW. 

ering  an  invoice  of  these  goods,  he  says,  "they  are  to  be  sold  on 
joint  account,  or  on  mine,  at  your  option."  The  whole  question, 
as  to  the  exclusive  property  of  Jones  in  these  goods,  is  rested,  by 
the  captors,  upon  the  above  expressions  giving  an  option  to  Magee 
to  be  jointly  concerned  or  not  in  the  shipment.  The  question  of 
law  is,  in  whom  the  right  of  property  was  at  the  time  of  capture  ? 
To  effect  a  change  of  property,  as  between  seller  and  buyer,  it  is 
essential,  that  there  should  be  a  contract  of  sale,  agreed  to  by  both 
parties;  and  if  the  thing  agreed  to  be  sold,  is  to  be  sent  by  the 
vendor  to  the  vendee,  it  is  necessary  to  the  perfection  of  the  con- 
tract, that  it  should  be  delivered  to  the  purchaser  or  to  his  agent, 
which  the  master,  to  many  purposes,  is  considered  to  be.  The 
only  evidence  of  a  contract,  such  as  is  now  set  up,  appears  in  the 
affidavit  of  iviagee,  who  states,  that  in  1810,  he  was  in  England, 
and  agreed  with  Jones,  that  the  latter  should  ship  goods  on  joint 
account,  when  the  intercourse  between  the  two  countries  should 
be  opened ;  and  that  in  consequence  of  this  agreement,  the  present 
shipment  was  made.  Now,  admit  that  such  an  agreement  was 
made,  yet  the  delivery  of  the  goods  to  the  master  of  the  vessel  was 
not  for  the  use  of  Magee  &  Jones,  any  more  than  it  was  for  the 
use  of  the  shipper  solely ;  and  consequently,  it  amounted  to  noth- 
ing so  as  to  divest  the  property  out  of  the  shipper,  until  Magee 
should  elect  to  take  them  on  joint  account,  or  to  act  as  the  agent 
of  Jones.  Until  this  election  was  made,  the  goods  were  at  the  risk 
of  the  shipper,  which  is  conclusive  as  to  the  right  of  property. 

3.  The  next  claim  is  that  of  Lenox  &  Maitland  to  the  ship. 
The  facts  in  relation  to  this  subject  are,  that  James  Lenox,  as 
joint-owner,  with  William  Maitland,  of  this  ship,  obtained,  in  No- 
vember, 181 1,  a  register  for  her,  which  was  granted  upon  his  oath, 
that  he,  together  with  William  Maitland,  of  the  city  of  New  York, 
merchant,  were  the  only  owners.  At  this  time,  Maitland  was 
domiciled  in  Great  Britain ;  and  it  is  contended  that  the  statement 
that  Maitland  was  of  New  York,  was  untrue,  and  subjected  the 
vessel  to  forfeiture,  under  the  act  of  congress  of  the  31st  of  De- 
cember, 1792;  and  that  although  no  claim  is  interposed  for  the 
United  States,  still  the  forfeiture  produced  by  the  misconduct  of 
Lenox,  is  sufficient  to  turn  him  out  of  court,  whatever  disposition 


ALIEN    ENEMIES.  121 

may  ultimately  be  made  of  the  property.  The  rule  of  the  prize 
court  is  correctly  stated  in  this  argument;  and  the  only  question 
is,  whether  a  forfeiture  did  accrue  to  the  United  States.  The 
act  of  congress  directs,  that  the  owner  who  takes  the  oath,  in  case 
there  are  more  than  one  owner,  shall,  in  his  oath,  specify  the 
names  and  places  of  abode  of  such  owners,  and  that  they  are  citi- 
zens of  the  United  States,  if  such  be  the  fact ;  and  if  one  or  more 
of  them  reside  abroad,  as  a  partner  or  partners  in  a  co-partner- 
ship consisting  of  citizens,  and  carrying  on  trade  with  the  United 
States,  that  such  is  the  case.  The  law  then  proceeds  to  declare, 
that  if  any  of  the  matters  of  fact  in  the  said  oath  alleged,  within 
the  knowledge  of  the  party  swearing,  shall  not  be  true,  the  ship 
shall  be  forfeited  to  the  United  States.  It  cannot  be  denied,  that 
at  the  time  this  oath  was  taken,  William  Maitland  was  a  resident 
merchant  of  Great  Britain,  carrying  on  trade  with  the  United 
States;  a  fact  totally  inconsistent  with  that  alleged  in  the  oath, 
that  he  was  of  the  city  of  New  York.  It  is  probable,  and  the  court 
is  willing  to  believe,  that  this  statement  was  innocently  made,  un- 
der a  misconception  of  the  real  character  which  the  foreign  domi- 
cil  of  Maitland  had  impressed  upon  him.  But  still,  the  law  re- 
quired explicitness  on  this  point,  and  marked  the  distinction  be- 
tween a  person  residing  abroad,  and  one  residing  within  the  United 
States.  It  must  be  admitted,  in  point  of  law,  that  the  fact  sworn 
to  by  Lenox  was  not  true ;  and  the  consequence  is,  a  forfeiture  of 
the  ship  to  the  United  States.  The  claim,  therefore,  of  Lenox  &. 
Maitland  to  this  vessel  must  be  rejected.  What  order  shall  be 
made  as  to  the  ultimate  disposition  of  the  property,  must  depend 
upon  the  opinion  which  this  court  may  give  in  some  other  cases 
touching  this  subject. 

The  great  question  involved  in  this,  and  many  other  of  the 
prize  cases  which  have  been  argued,  is,  whether  the  property  of 
these  claimants  who  were  settled  in  Great  Britain,  and  engaged  in 
the  commerce  of  that  country,  shipped  before  they  had  a  knowl- 
edge of  the  war,  but  which  was  captured,  after  the  declaration  of 
war,  by  an  American  cruiser,  ought  to  be  condemned  as  lawful 
prize.  It  is  contended  by  the  captors,  that  as  these  claimants  had 
gained  a  domicil  in  Great  Britain,  and  continued  to  enjoy  it,  up  to 


122  PRIVATE    INTERNATIONAL   LAW. 

the  time  when  war  was  declared,  and  when  these  captures  were 
made,  they  must  be  considered  as  British  subjects,  in  reference  to 
this  property,  and  consequently,  that  it  may  legally  be  seized  as 
prize  of  war,  in  like  manner  as  if  it  had  belonged  to  real  British 
subjects.  But  if  not  so,  it  is  then  insisted,  that  these  claimants 
having,  after  their  naturalization  in  the  United  States,  returned 
to  Great  Britain,  the  country  of  their  birth,  and  there  re-settled 
themselves,  they  became  reintegrated  British  subjects,  and  ought 
to  be  considered  by  this  court  in  the  same  light  as  if  they  had 
never  emigrated.  On  the  other  side,  it  is  argued,  that  American 
citizens  settled  in  the  country  of  the  enemy,  as  these  persons  were, 
at  the  time  war  was  declared,  were  entitled  to  a  reasonable  time  to 
elect,  after  they  knew  of  the  war,  to  remain  there,  or  to  return  to 
the  United  States ;  and  that,  until  such  election  was,  bona  fide, 
made,  the  courts  of  this  country  are  bound  to  consider  them  as 
American  citizens,  and  their  property  shipped  before  they  had  an 
opportunity  to  make  this  election,  as  being  protected  against 
American  capture. 

There  being  no  dispute  as  to  the  facts  upon  which  the  domi- 
cil  of  these  claimants  is  asserted,  the  questions  of  law  alone  remain 
to  be  considered.  They  are  two:  ist.  By  what  means  and  to 
what  extent,  a  national  character  may  be  impressed  upon  a  per- 
son, different  from  that  which  permanent  allegiance  gives  him? 
And  2d.  What  are  the  legal  consequences  to  which  this  acquired 
character  may  expose  him,  in  the  event  of  a  war  taking  place  be- 
tween the  country  of  his  residence  and  that  of  his  birth,  or  in 
which  he  had  been  naturalized  ? 

i.  The  writers  upon  the  law  of  nations  distinguish  between  a 
temporary  residence  in  a  foreign  country,  for  a  special  purpose, 
and  a  residence  accompanied  with  an  intention  to  make  it  a  per- 
manent place  of  abode.  The  latter  is  styled  by  Vattel,  domicil, 
which  he  defines  to  be,  "a  habitation  fixed  in  any  place,  with  an 
intention  of  always  staying  there."  Such  a  person,  says  this  au 
thor,  becomes  a  member  of  the  new  society,  at  least,  as  a  perma- 
nent inhabitant,  and  is  a  kind  of  citizen  of  an  inferior  order  from 
the  native  citizens;  but  is,  nevertheless,  united  and  subject  to  the 
society,  without  participating  in  all  its  advantages.     This  right  of 


ALIEN  ENEMIES.  123 

domicil,  he  continues,  is  not  established,  unless  the  person  makes 
sufficiently  known  his  intention  of  fixing  there,  either  tacitly,  or 
by  an  express  declaration.  Vatt.  p.  92,  93.  Grotius  no  where 
uses  the  word  domicil,  but  he  also  distinguishes  between  those 
who  stay  in  a  foreign  country,  by  the  necessity  of  their  affairs,  or 
from  any  other  temporary  cause,  and  those  who  reside  there  from 
a  permanent  cause.  The  former  he  denominates  strangers,  and 
the  latter,  subjects;  and  it  will  presently  be  seen,  by  a  reference 
to  the  same  author,  what  different  consequences  these  two  charac- 
ters draw  after  them. 

The  doctrine  of  the  prize  courts,  as  well  as  of  the  courts  of 
common  law,  in  England,  which,  it  was  hinted,  if  not  asserted,  in 
argument,  had  no  authority  of  universal  law  to  stand  upon,  is  the 
same  with  what  is  stated  by  the  above  writers  ;  except  that  it  is  less 
general,  and  confines  the  consequences  resulting  from  this  ac- 
quired character  to  the  property  of  those  persons  engaged  in  the 
commerce  of  the  country  in  which  they  reside.  It  is  decided  by 
those  courts,  that  wmlst  an  Englishman,  or  a  neutral,  resides  in 
a  hostile  country,  he  is  a  subject  of  that  country,  and  is  to  be  cor- 
sidered  (even  by  his  own  or  native  country,  in  the  former  case), 
as  having  a  hostile  character  impressed  upon  him. 

In  deciding  whether  a  person  has  obtained  the  right  of  an 
acquired  domicil,  it  is  not  to  be  expected,  that  much,  if  any,  as- 
sistance should  be  derived  from  mere  elementary  writers  on  the 
law  of  nations.  They  can  only  lay  down  the  general  principles 
of  law  ;  and  it  becomes  the  duty  of  courts  to  establish  rules  for 
the  proper  application  of  those  principles.  The  question,  whether 
the  person  to  be  affected  by  the  right  of  domicil  had  sufficiently 
made  known  his  intention  of  fixing  himself  permanently  in  the 
foreign  country,  must  depend  upon  all  the  circumstances  of  the 
case.  If  he  had  made  no  express  declaration  on  the  subject,  and 
his  secret  intention  is  to  be  discovered,  his  acts  must  be  attended 
to,  as  affording  the  most  satisfactory  evidence  of  his  intention. 
On  this  ground  it  is,  that  the  courts  of  England  have  decided,  that 
a  person  who  removes  to  a  foreign  country,  settles  himself  there, 
and  engages  in  the  trade  of  the  country,  furnishes,  by  these  acts, 
such  evidence  of  an  intention  permanently  to  reside  there,  as  to 


124  PRIVATE   INTERNATIONAL   LAW. 

stamp  him  with  the  national  character  of  the  state  where  he  re- 
sides. In  questions  on  this  subject,  the  chief  point  to  be  consid- 
ered is  the  animus  manendi;  and  courts  are  to  devise  such  rea- 
sonable rules  of  evidence  as  may  establish  the  fact  of  intention, 
jf  it  sufficiently  appear,  that  the  intention  of  removing  was  to 
make  a  permanent  settlement,  or  for  an  indefinite  time,  the  right 
of  domicil  is  acquired  by  a  residence  even  of  a  few  days.  This  is 
one  of  the  rules  of  the  British  courts,  and  it  appears  to  be  per- 
fectly reasonable.  Another  is,  that  a  neutral  or  subject,  found 
residing  in  a  foreign  country  is  presumed  to  be  there  animo 
manendi;  and  if  a  state  of  war  should  bring  his  national  character 
into  question,  it  lies  upon  him  to  explain  the  circumstances  of  his 
residence.  The  Bernon,  i  Rob  86,  102.  As  to  some  other  rules 
of  the  prize  courts  of  England,  particularly  those  which  fix  a 
national  character  upon  a  person  on  the  ground  of  constructive 
residence,  or  the  peculiar  nature  of  his  trade,  the  court  is  not 
called  upon  to  give  an  opinion  at  this  time :  because,  in  this  case, 
it  is  admitted  that  the  claimants  had  acquired  a  right  of  domicil 
in  Great  Britain,  at  the  time  of  the  breaking  out  of  the  war  be- 
tween that  country  and  the  United  States. 

2.  The  next  question  is,  what  are  the  consequences  to  which 
this  acquired  domicil  may  legally  expose  the  person  entitled  to  it, 
in  the  event  of  a  war  taking  place  between  the  government  under 
which  he  resides  and  that  to  which  he  owes  a  permanent  alle- 
giance? A  neutral,  in  his  situation,  if  he  should  engage  in  open 
hostilities  with  the  other  belligerent,  would  be  considered  and 
treated  as  an  enemy.  A  citizen  of  the  other  belligerent  could  not 
be  so  considered,  because  he  could  not,  by  any  act  of  hostility,  ren- 
der himself,  strictly  speaking,  an  enemy,  contrary  to  his  perma- 
nent allegiance.  But  although  he  cannot  be  considered  an  enemy, 
in  the  strict  sense  of  the  word,  yet  he  is  deemed  such,  with  refer- 
ence to  the  seizure  of  so  much  of  his  property  concerned  in  the 
trade  of  the  enemy,  as  is  connected  with  his  residence.  It  is  found 
adhering  to  the  enemy.  He  is  himself  adhering  to  the  enemy,  al- 
though not  criminally  so,  unless  he  engages  in  acts  of  hostility 
against  his  native  country,  or,  probably,  refuses,  when  required  by 
his  country,  to  return.     The  same  rule,  as  to  property  engaged  in 


ALIEN   ENEMIES.  125 

the  commerce  of  the  enemy,  applies  to  neutrals ;  and  for  the  same 
reason.  The  converse  of  this  rule  inevitably  applies  to  the  sub- 
ject of  a  belligerent  state,  domiciled  in  a  neutral  country;  he  is 
deemed  a  neutral  by  both  belligerents,  with  reference  to  the  trade 
which  he  carries  on  with  the  adverse  belligerent,  and  with  all  the 
rest  of  the  world. 

But  this  natioral  character  which  a  man  acquires  by  residence, 
may  be  thrown  off  at  pleasure,  by  a  return  to  his  native  country, 
or  even  by  turning  his  back  on  the  country  in  which  he  has  re- 
sided, on  his  way  to  another.     To  use  the  language  of  Sir  W. 
Scott,  it  is  an  adventitious  character  gained  by  residence,  and 
which  ceases  by  non-residence.     It  no  longer  adheres  to  the  party 
from  the  moment  he  puts  himself  in  motion,  bona  fide,  to  quit  the 
country  sine  animo  revert endi.     The  Indian  Chief,  3  Rob.  12,  17. 
The  reasonableness  of  this  rule  can  hardly  be  disputed.     Having 
once  acquired  a  national  character,  by  residence  in  a  foreign  coun- 
try, he  ought  to  be  bound  by  all  the  consequences  of  it,  until  he 
has  thrown  it  off,  either  by  an  actual  return  to  his  native  country, 
or  to  that  where  he  was  naturalized,  or  by  commencing  his  re- 
moval, bona  fide,  and  without  an  intention  of  returning.     If  any- 
thing short  of  actual  removal  be  admitted  to  work  a  change  in  the 
national  character  acquired  by  residence,  it  seems  perfectly  rea- 
sonable, that  the  evidence  of  a  bona  fide  intention  to  remove  should 
be  such  as  to  leave  no  doubt  of  its  sincerity.     Mere  declarations 
of  such  an  intention  ought  never  to  be  relied  upon,  when  contra- 
dicted, or,  at  least,  rendered  doubtful,  by  a  continuance  of  that 
residence  which  impressed  the  character.     They  may  have  been 
made  to  deceive ;  or,  if  sincerely  made,  they  may  never  be  exe- 
cuted.    Even  the  party  himself  ought  not  to  be  bound  by  them, 
because  he  may  afterwards  find  reason  to  change  his  determina- 
tion, and  ought  to  be  permitted  to  do  so.     But  when  he  accom- 
panies those  declarations  by  acts  which  speak  a  language  not  to 
be  mistaken,  and  can  hardly  fail  to  be  consummated  by  actual  re- 
moval, the  strongest  evidence  is  afforded,  which  the  nature  of 
such  a  case  can  furnish.     And  is  it  not  proper  that  the  courts  of  a 
belligerent  nation  should  deny  to  any  person  the  right  to  use  a 
character  so  equivocal,  as  to  put  it  in  his  power  to  claim  which- 


126  PRIVATE   INTERNATIONAL  LAW. 

ever  may  best  suit  his  purpose,  when  it  is  called  in  question?  It 
his  property  be  taken,  trading  with  the  enemy,  shall  he  be  allowed 
to  shield  it  from  confiscation,  by  alleging  that  he  had  intended  to 
remove  from  the  country  of  the  enemy  to  his  own,  then  neutral, 
and  therefore,  that  as  a  neutral,  the  trade  was  lawful?  If  war 
exist  between  the  country  of  his  residence  and  his  native  country, 
and  his  property  be  seized  by  the  former,  or  by  the  latter,  shall  he 
be  heard  to  say  in  the  former  case,  that  he  was  a  domiciled  subject 
of  the  country  of  the  captor,  and  in  the  latter,  that  he  was  a  na- 
tive subject  of  the  country  of  that  captor  also,  because  he  had  de- 
clared an  intention  to  resume  his  native  character ;  and  thus  to 
parry  the  belligerent  rights  of  both  ?  It  is  to  guard  against  such 
inconsistencies,  and  against  the  frauds  which  such  pretensions, 
if  tolerated,  would  sanction,  that  the  rule  above  mentioned  hao 
been  adopted. 

Upon  what  sound  principle,  can  a  distinction  be  framed,  be- 
tween the  case  of  a  neutral,  and  the  subject  of  one  belligernt  domi- 
ciled in  the  country  of  the  other,  at  the  breaking  out  of  the  war? 
The  property  of  each,  found  engaged  in  the  commerce  of  their 
adopted  country,  belonged  to  them,  before  the  war,  in  their  char- 
acter of  subjects  of  that  country,  so  long  as  they  continued  to 
retain  their  domicil ;  and  when  a  state  of  war  takes  place  between 
that  country  and  any  other,  by  which  the  two  nations  and  all  their 
subjects  become  enemies  to  each  other,  it  follows,  that  the  prop- 
erty, which  was  once  the  property  of  a  friend,  belongs  now,  in 
reference  to  that  property,  to  an  enemy.  This  doctrine  of  the 
common  law  and  prize  courts  of  England  is  founded,  like  that 
mentioned  under  the  first  head,  upon  national  law ;  and  it  is  be- 
lieved to  be  strongly  supported  by  reason  and  justice.  It  is  laid 
down  by  Grotius,  p.  563,  "that  all  the  subjects  of  the  enemy  who 
are  such  from  a  permanent  cause,  that  is  to  say,  settled  in  the 
country,  are  liable  to  the  law  of  reprisals,  whether  they  be  natives 
or  foreigners ;  but  not  so,  if  they  are  only  trading  or  sojourning 
for  a  little  time."  And  why,  it  may  be  confidently  asked,  should 
not  the  property  of  such  subjects  be  exposed  to  the  law  of  re- 
prisals and  of  war,  so  long  as  the  owner  retains  his  acquired  domi- 
cil, or,  in  the  words  of  Grotius,  continues  a  permanent  residence 


ALIEN    ENEMIES.  127 

in  the  country  of  the  enemy?  They  were  before,  and  continue 
after  the  war,  bound,  by  such  residence,  to  the  society  of  which 
they  are  members,  subject  to  the  laws  of  the  state,  and  owing  a 
qualified  allegiance  thereto;  they  are  obliged  to  defend  it  (with 
an  exception  in  favor  of  such  a  subject,  in  relation  to  his  native 
country),  in  return  for  the  protection  it  affords  them,  and  the 
privileges  which  the  laws  bestow  upon  them  as  subjects.  The 
property  of  such  persons,  equally  with  that  of  the  native  subjects 
in  their  totality,  is  to  be  considered  as  the  goods  of  the  nation,  in 
regard  to  other  states.  It  belongs,  in  some  sort,  to  the  state,  from 
the  right  which  she  has  over  the  goods  of  its  citizens,  which  make 
a  part  of  the  sum  total  of  its  riches,  and  augment  its  power.  Vatt. 
147;  and  also,  lib.  1,  c.  14,  sec.  182.  In  reprisals,  continues  the 
same  author,  we  seize  on  the  property  of  the  subject,  just  as  we 
would  that  of  the  sovereign ;  everything  that  belongs  to  the  nation 
is  subject  to  reprisals,  wherever  it  can  be  seized,  with  the  excep- 
tion of  a  deposit  entrusted  to  the  public  faith.  Lib.  2,  c.  18,  sec. 
344.  Now,  if  a  permanent  residence  constitutes  the  person  a  sub- 
ject of  the  country  where  he  is  settled,  so  long  as  he  continues  to 
reside  there,  and  subjects  his  property  to  the  law  of  reprisals,  as 
a  part  of  the  property  of  the  nation,  it  would  seem  difficult  to 
maintain,  that  the  same  consequences  would  not  follow  in  the  case 
of  an  open  and  public  war,  whether  between  the  adopted  and  na- 
tive countries  of  persons  so  domiciled,  or  between  the  former  and 
any  other  nation. 

If,  then,  nothing  but  an  actual  removal,  or  a  bona  fide  begin- 
ning to  remove,  can  change  a  national  character,  acquired  by 
domicil,  and  if,  at  the  time  of  the  inception  of  the  voyage,  as  well 
as  at  the  time  of  capture,  the  property  belonged  to  such  domiciled 
person,  in  his  character  of  a  subject,  what  is  there  that  does,  or 
ought,  to  exempt  it  from  capture  by  the  privateers  of  his  native 
country,  if,  at  the  time  of  capture,  he  continues  to  reside  in  the 
country  of  the  adverse  belligerent  ?  It  is  contended,  that  a  native 
or  naturalized  subject  of  one  country,  who  is  surprised  in  the 
country  where  he  was  domiciled,  by  a  declaration  of  war,  ought  to 
have  time  to  make  his  election  to  continue  there,  or  to  remove  to 
the  country  to  which  he  owes  a  permanent  allegiance ;  and  that, 


128  PRIVATE   INTERNATIONAL   LAW. 

until  such  election  is  made,  his  property  ought  to  be  protected 
from  capture  by  the  cruisers  of  the  latter.  This  doctrine  is  be- 
lieved to  be  as  unfounded  in  reason  and  justice,  as  it  clearly  is  in 
law.  In  the  first  place,  it  is  founded  upon  a  presumption  that  the 
person  will  certainly  remove,  before  it  can  possibly  be  known, 
whether  he  may  elect  to  do  so  or  not.  It  is  said,  that  this  pre- 
sumption ought  to  be  made,  because,  upon  receiving  information 
of  the  war,  it  will  be  his  duty  to  return  home.  This  position  is 
denied.  It  is  his  duty  to  commit  no  acts  of  hostility  against  his 
native  country,  and  to  return  to  her  assistance,  when  required  to 
do  so;  nor  will  any  just  nation,  regarding  the  mild  principles  of 
the  law  of  nations,  require  him  to  take  arms  against  his  native 
country,  or  refuse  her  permission  to  him  to  withdraw  whenever 
he  wishes  to  do  so,  unless  under  peculiar  circumstances,  which, 
by  such  removal  at  a  critical  period,  might  endanger  the  public 
safety.  The  conventional  law  of  nations  is  in  conformity  with 
these  principles.  It  is  not  uncommon  to  stipulate  in  treaties,  that 
the  subjects  of  each  shall  be  allowed  to  remove  with  their  prop- 
erty, or  to  remain  unmolested.  Such  a  stipulation  does  not  co- 
erce those  subjects  either  to  remove  or  to  remain.  They  are  left 
free  to  choose  for  themselves ;  and  when  they  have  made  their 
election,  they  claim  the  right  of  enjoying  it  under  the  treaty ;  but 
until  the  election  is  made,  their  former  character  continues  un- 
changed. 

Until  this  election  is  made,  if  his  property  found  upon  the 
high  seas,  engaged  in  the  commerce  of  his  adopted  country, 
should  be  permitted,  by  the  cruisers  of  the  other  belligerent,  to 
pass  free,  under  the  notion  that  he  may  elect  to  remove,upon  notice 
of  the  war,  and  should  arrive  safe,  what  is  to  be  done,  in  case  the 
owner  of  it  should  afterwards  elect  to  remain  where  he  is?  or,  if 
captured  and  brought  immediately  to  adjudication,  it  must,  upon 
this  doctrine,  be  acquited  until  the  election  to  remain  is  made 
known.  In  short,  the  point  contended  for  would  apply  the  doc- 
trine of  relation  to  cases  where  the  party  claiming  the  benefit  of 
it  may  gain  all,  and  can  lose  nothing.  If  he,  after  the  capture, 
should  find  it  his  interest  to  remain  where  he  is  domiciled,  his 
property  embarked  before  his  election  was  made,  is  safe ;  and  if  he 


ALIEN   ENEMIES.  129 

finds  it  best  to  return,  it  is  safe,  of  course.  It  is  safe,  whether  he 
goes  or  stays.  This  doctrine,  producing  such  contradictory  con- 
sequences, is  not  only  unsupported  by  any  authority,  but  it  would 
violate  principles  long  and  well  established  in  the  prize  courts  of 
England,  and  which  ought  not,  without  strong  reasons  which  may 
render  them  inapplicable  to  this  country,  to  be  disregarded  by  this 
court.  The  rule  there,  is,  that  the  cnaracter  of  property,  during 
war,  cannot  be  changed  in  transitu,  by  any  act  of  the  party,  subse- 
quent to  the  capture.  The  rule,  indeed,  goes  further:  as  to  the 
correctness  of  which  in  its  greatest  extension,  no  opinion  need 
now  be  given  ^but  it  may  safely  be  affirmed,  that  this  change  can- 
not and  ought  not  to  be  effected  by  an  election  of  the  owner  and 
shipper  of  it,  made  subsequent  to  the  capture,  and  more  especially, 
after  a  knowledge  of  the  capture  is  obtained  by  the  owner,  ob- 
serve the  consequences  which  would  result  from  it.  The  capture 
is  made  and  known.  The  owner  is  allowed  to  deliberate  whether 
it  is  his  interest  to  remain  a  subject  of  his  adopted,  or  of  his  na- 
tive country.  If  the  capture  be  made  bv  the  former,  then  he  elects 
to  be  a  subject  of  that  country ;  if  by  the  latter,  the»  a  subject  of 
that.  Can  such  a  privileged  situation  be  tolerated  by  either  bel- 
ligerent? Can  any  system  of  law  be  correct,  which  places  an  in- 
dividual who  adheres  to  one  belligerent,  and,  to  the  period  of  his 
election  to  remove,  contributes  to  increase  her  wealth,  in  so 
anomalous  a  situation  as  to  be  clothed  with  the  privileges  of  a 
neutral,  as  to  both  belligerents?  This  notion  about  a  temporary 
state  of  neutrality  impressed  upon  a  subject  of  one  of  the  belli- 
gerents, and  the  consequent  exemption  of  his  property  from  cap- 
ture by  either,  until  he  has  had  notice  of  the  war,  and  made  his 
election,  is  altogether  a  novel  theory,  and  seems,  from  the  course 
of  the  argument,  to  owe  its  origin  to  a  supposed  hardship  to  which 
the  contrary  doctrine  exposes  him.  But  if  the  reasoning  em- 
ployed on  this  subject  be  correct,  no  such  hardship  can  exist.  For 
if,  before  the  election  is  made,  his  property  on  the  ocean  is  liable 
to  capture  by  the  cruizers  of  his  native  and  deserted  country,  it 
is  not  only  free  from  capture  by  those  of  his  adopted  country,  but 
it  is  under  its  protection.     The  privilege  is  supposed  to  be  equal 


130  PRIVATE   INTERNATIONAL   LAW. 

to  the  disadvantage,  and  is  therefore  just.  The  double  privilege 
claimed  seems  too  unreasonable  to  be  granted. 

It  will  be  observed,  that  in  the  foregoing  opinion  respecting 
the  nature  and  consequences  of  domicil,  very  few  cases  have  been 
referred  to.  It  was  thought  best  not  to  interrupt  the  chain  of  ar- 
gument, by  stopping  to  examine  cases;  but  faithfully  to  present 
the  essential  principles  to  be  extracted  from  those  which  were 
cited  at  the  bar,  or  which  have  otherwise  come  under  the  view  of 
the  court,  and  which  applied  to  the  subject.  With  what  success 
this  has  been  executed,  is  not  for  me  to  decide.  But  there  are 
two  or  three  cases  which  seem  to  be  so  applicable,  and  at  the  same 
time,  so  conclusive  on  the  great  points  of  this  question,  that  it  may 
not  be  improper  briefly  to  notice  them.  In  support  of  the  general 
principles,  that  the  national  character  of  the  owner  at  the  time  of 
capture,  must  decide  his  right  to  claim,  and  that  a  subject  is  con- 
demned by  it,  even  in  the  courts  of  his  native  country,  without 
time  being  allowed  to  him  to  elect  to  remove,  the  following  cases 
may  be  referred  to. 

In  The  Boedes  Lust,  5  Rob.  247,  it  was  decided,  that  the 
property  of  a  resident  of  Demarara,  shipped  before  hostilities  of 
any  kind  had  occurred  between  Holland  and  Great  Britain,  but 
which  was  captured,  under  an  embargo  declared  by  England  upon 
Dutch  property,  as  preparatory  to  war,  which  ensued  soon  after 
the  seizure,  was,  by  the  retroactive  effect  of  the  war,  applied  to 
property  so  seized,  to  be  considered  as  the  property  of  an  enemy 
taken  in  war.  In  this  case,  Sir  W.  Scott  lays  it  down,  that, 
where  property  is  taken  in  a  state  of  hostility,  the  universal  prac- 
tice has  ever  been,  to  hold  it  subject  to  condemnation,  although 
the  claimants  may  have  become  friends  and  subjects,  prior  to  the 
adjudication.  This  case  is  somewhat  stronger  than  the  present, 
in  the  circumstance,  that  in  that,  the  state  of  hostility,  alleged  to 
have  existed  at  the  time  of  capture,  was  made  out,  by  considering 
the  subsequent  declaration  of  war  as  relating  back  to  the  time  of 
seizure  under  the  embargo,  by  which  reference  it  was  decided  to 
be  a  hostile  embargo,  and  of  course,  tantamount  to  an  actual  state 
of  war.  But  this  case  also  proves,  not  only  that  the  hostile  char- 
acter of  the  property  at  the  time  of  capture,  establishes  the  legality 


ALIEN   ENEMIES.  131 

of  it,  but  that  no  future  circumstance  changing  the  hostile  charac- 
ter of  the  claimant  to  that  of  a  friend  or  subject,  can  entitle  him 
to  restitution.  Whether  the  claimant,  in  this  case,  was  a  neutral 
or  a  British  subject,  does  not  appear.  But  if  the  former,  it  will 
not,  it  is  presumed,  be  contended,  that  he  is,  upon  the  principles  of 
national  law,  less  to  be  favored  in  the  courts  of  the  belligerent, 
than  a  subject  of  that  nation  domiciled  in  the  country  of  the  ad- 
verse belligerent. 

IVhitehill's  Case,  however,  referred  to  frequently  in  Robin- 
son's Reports,  comes  fully  up  to  the  present,  because  he  was  a 
British  subject,  who  had  settled  but  a  few  days  in  the  hostile  coun- 
try, but  before  he  knew  or  could  have  known  of  the  declaration 
of  war ;  yet,  as  he  went  there  with  an  intention  to  settle,  this,  con- 
nected with  his  residence,  short  as  it  was,  fixed  his  national  char- 
acter, and  identified  him  with  the  enemy  of  the  country  he  had 
so  recently  quitted.  The  want  of  notice,  and  of  an  opportunity 
to  extricate  himself  from  a  situation  to  which  he  had  so  recently 
and  so  innocently  exposed  himself,  could  not  prevail  to  protect  his 
property  against  the  belligerent  rights  of  his  own  country,  and  to 
save  it  from  confiscation.  There  are  many  other  strong  cases 
upon  these  points,  which  I  forbear  to  notice  particularly,,  from  an 
unwillingness  to  swell  this  opinion  already  too  long. 

The  sentence  of  the  court  is  as  follows :  This  cause  came  on 
to  be  heard  on  the  transcript  of  the  record,  and  was  argued  by 
counsel ;  on  consideration  whereof,  it  is  decreed  and  ordered,  that 
the  sentence  of  the  circuit  court  of  Massachusetts  condemning  the 
one  hundred  casks  of  white  lead  claimed  by  Lenox  &  Maitland  be, 
and  the  same  is  hereby  affirmed  with  costs.  And  that  the  sen- 
tence of  the  said  circuit  court  as  to  the  claim  of  Magee  &  Jones  to 
twenty-one  trunks  of  merchandise  be,  and  the  same  is  hereby  re- 
versed and  annulled ;  and  that  the  said  twenty-one  trunks  of  mer- 
chandise be  condemned  to  the  captors;  and  that  the  sentence  of 
the  said  circuit  court  as  to  the  ship  Venus  claimed  by  Lenox  & 
Maitland  be,  and  the  same  is  hereby  reversed ;  and  that  the  said 
ship  Venus  be  condemned,  the  one-half  thereof  to  the  captors,  and 
other  half  to  the  United  States,  under  the  order  of  the  said  circuit 
court.     That  the  sentence  of  the  said  circuit  court  as  to  the  claim 


132  PRIVATE   INTERNATIONAL   LAW. 

of  William  Maitland  to  one-half  of  one  hundred  and  fifty  crates 
of  earthenware,  thirty-five  cases  and  tnree  casks  of  copper,  nine 
pieces  of  cotton  bagging  and  twenty  and  four-twentieths  tons  of 
coal,  be,  and  the  same  is  hereby  reversed,  and  that  the  same  be 
condemned  to  the  captors ;  and  that  the  sentence  of  the  said  cir- 
cuit court,  as  to  the  claim  of  Alexander  McGregor  to  one-half  of 
one  hundred  and  ninety-eight  packages  of  merchandise,  as  the 
joint  property  of  himself  and  Lenox  &  Maitland,  and  of  the  claim 
of  William  Maitland  for  one-fourth  of  the  same  goods,  and  of 
the  claim  of  Alexander  McGregor  to  twenty-five  pieces  of  cotton 
bagging,  and  five  trunks  of  merchandise,  be,  and  the  same  is  here- 
by reversed  and  annulled,  and  that  the  same  be  condemned  to  the 
captors;  and  that  the  said  cause  be  remanded  to  the  said  circuit 
court  for  further  proceedings  to  be  had  therein. 


JURISDICTON  AND  CHOICE 
OF  LAW. 


IN   GENERAL. 


DEWITT  v.  BUCHANAN,  54  BARB.  31,  (1868). 

This  is  a  demurrer  to  an  answer.  The  action  was  for  as- 
sault and  battery,  and  the  answer  averred  that  at  the  time  of  com- 
mitting the  tort  alleged  in  the  complaint,  the  plaintiff  and  de- 
fendant were,  and  still  are,  subjects  of  Great  Britain,  and  citizens 
and  residents  of  Canada,  and  that  the  assault  and  battery  com- 
plained of  was  committed  in  said  province.  The  plaintiff  de- 
murred on  the  ground  that  the  answer  did  not  state  facts  consti- 
tuting a  defense. 

G.  W.  Lewis,  for  the  plaintiff. 

Cantwell  &  Beaman,  for  the  defendant. 

James,  J.  Actions  for  injuries  to  the  person  are  transitory, 
and  follow  the  person ;  and  therefore,  so  far  as  the  nature  of  the 
action  is  concerned,  one  foreigner  may  sue  another  foreigner  in 
our  courts  for  a  tort  committed  in  another  country,  the  same  as 
on  a  contract  made  in  another  country. 

It  is  now  settled  that  the  courts  of  this  state  have,  and  will 
entertain,  jurisdiction  of  actions  for  personal  injuries  committed 
abroad,  when  both,  or  either  of  the  parties,  are  citizens  of  the 
United  States.  {Glen  v.  Hodges,  9  John.  67.  Smith  v.  Bull,  17 
Wend.  323.  Lister  v.  Wright,  2  Hill,  320.  Johnson  v.  Dalton,  1 
Cowen,  548.)  I  am  aware  that  the  New  York  Common  Pleas, 
in  Molony  v.  Dows,  (8  Abb.  316,)  held  otherwise.  But  that  case 
is  not  regarded  as  authority  in  this  court.  That  decision  was 
probably  affected  by  the  necessities  of  the  case,  overlooking  the 
second  section  of  the  fourth  article  -of  the  constitution  of  the 
United  States. 

The  case  of  Fabrigas  v.  Mostyn  (2  Black.  929)  is  always  re- 
ferred to  on  this  question.     In  that  case  Lord  Mansfield  put,  by 


134  PRIVATE    INTERNATIONAL   LAW. 

way  of  illustration,  the  case  of  two  Frenchmen  fighting  in  France, 
and  expressed  a  doubt  of  the  jurisdiction  of  the  courts  in  Eng- 
land in  such  case.  But  the  reason  given  why  the  court  would 
not  have  jurisdiction  in  such  case  has  been  held,  in  this  state,  not 
sufficient.  {See  Mclvor  v.  McCabe,  26  How.  Pr.  261,  and  Gard- 
ner v.  Thomas,  14  John.  134.)  In  the  latter  case  the  action  was 
for  a  tort  committed  on  the  high  seas,  on  board  a  British  vessel, 
both  parties  being  British  subjects;  it  originated  in  a  justice's 
court,  where  the  plaintiff  had  judgment.  "The  court  held  that 
although  it  might  take  cognizance  of  torts  committed  on  the  high 
seas,  on  board  foreign  vessels,  when  both  parties  were  foreigners, 
yet  on  principles  of  policy  it  would  often  rest  in  the  sound  discre- 
tion of  the  court  to  afford  jurisdiction,  or  not,  according  to  the 
circumstances  of  each  case."  On  this  ground  the  judgment  of 
the  justice  was  reversed. 

I  have  been  unable  to  discover  any  principle  on  which  the 
jurisdiction  of  the  court  in  such  a  case  as  this  can  be  denied ;  but 
as  a  question  of  policy,  there  are  many  reasons  why  jurisdiction 
should  not  be  entertained.  Unless  for  special  reasons,  non-resi- 
dent foreigners  should  not  be  permitted  the  use  of  our  courts  to 
redress  wrongs  or  enforce  contracts,  committed  or  made  within 
their  own  territory.  Our  courts  are  organized  and  maintained 
at  our  own  expense,  for  the  use,  benefit  and  protection  of  our  citi- 
zens. Foreigners  should  not  be  invited  to  bring  their  matters 
here  for  litigation.  But  if  a  foreigner  flee  to  this  country,  he  may- 
be pursued  and  prosecuted  here. 

Nothing  appears  in  this  case  showing  why  jurisdiction 
should  be  entertained.  It  seems  an  ordinary  case  of  assault  and 
battery,  committed  in  Canada,  both  parties  still  residing  there, 
the  defendant  being  casually  here  when  arrested.  It  is  most 
clearly  against  the  interests  of  those  living  on  the  border  for  our 
courts  to  encourage  or  entertain  jurisdiction  of  such  actions.  To 
do  so  would  establish  a  practice  which  might  often  be  attended 
with  serious  disadvantage  to  persons  crossing  the  border.  The 
true  policy  is  to  refuse  jurisdiction  in  all  such  cases,  unless  for 
special  reasons  shown. 

But  the  case  is  now  before  us  upon  demurrer  to  the  suffi- 


IN   GENERAL.  135 

ciency  of  a  pleading,  not  on  a  motion  to  dismiss.  In  the  former 
case  the  court  has  power  to  determine  the  sufficiency  of  the  plead- 
ing only;  in  the  latter  case  it  has  a  discretion  to  adjudge  whether 
it  will  continue  jurisdiction  of  the  action  or  not.  In  the  former, 
no  papers  except  the  pleadings  are  properly  before  the  court,  and 
if  any  special  reasons  exist  for  retaining  jurisdiction,  they  would 
not,  and  could  not,  properly  appear;  while  in  the  latter  case  the 
special  reasons,  if  any,  could  be  set  forth  in  the  opposing  affi- 
davits. 

From  the  foregoing  it  will  be  seen  that  the  demurrer  is  well 
taken ;  that  the  answer  does  not  set  forth  facts  constituting  a  de- 
fense ;  that  as  a  question  of  law  this  court  has  jurisdiction  of  torts 
committed  in  a  foreign  country,  between  non-resident  foreigners ; 
but  as  a  matter  of  policy  will  only  exercise  it  in  its  discretion,  in 
exceptional  cases. 

There  must  be  judgment  for  the  plaintiff  on  the  demurrer, 
with  costs,  with  leave  to  the  defendant  to  amend,  or  to  move  to 
dismiss  the  complaint  on  the  grounds  set  forth  in  the  answer. 


MACHADO  v.  FONTES,  2  L.  R.  Q.  B.  D.  231,  (1897). 

Appeal  from  Kennedy  J.  at  chambers. 

The  plaintiff  brought  this  action  to  recover  damages  from 
the  defendant  for  an  alleged  libel  upon  the  plaintiff  contained  in 
a  pamphlet  in  the  Portuguese  language  alleged  to  have  been  pub- 
lished by  the  Plaintiff  in  Brazil. 

The  defendant  delivered  a  statement  of  defence  (in  which, 
amongst  other  defences,  he  denied  the  alleged  libel),  and  he  after- 
wards took  out  a  summons  for  leave  to  amend  his  defence  by  add- 
ing the  following  plea:  "Further  the  defendant  will  contend  that 
if  (contrary  to  the  defendant's  contention)  the  said  pamphlet  has 
been  published  in  Brazil,  by  the  Brazilian  law  the  publication  of 
the  said  pamphlet  in  Brazil  cannot  be  the  ground  of  legal  pro- 
ceedings against  the  defendant  in  Brazil  in  which  damages  can 
be  recovered,  or  (alternatively)  cannot  be  the  ground  of  legal 
proceedings  against  the  defendant  in  Brazil  in  which  the  plaintiff 
can  recover  general  damages  for  any  injury  to  his  credit,  charac- 
ter, or  feelings." 


136  PRIVATE  INTERNATIONAL  LAW. 

The  summons  came  before  Kennedy  J.  in  chambers,  who  al- 
lowed the  plea  to  be  added,  but  expressed  some  doubt  as  to  the 
propriety  of  so  doing,  and  gave  leave  to  plaintiff  to  bring  the 
present  appeal. 

Montague  Lush,  for  the  plaintiff,  in  support  of  the  appeal. 
Although  it  may  be  that  libel  cannot  in  Brazil  be  made  the  sub- 
ject of  civil  proceedings  in  which  the  plaintiff  could  recover 
damages,  it  is  not  an  innocent  act  there,  and  can  be  made  the  sub- 
ject of  criminal  proceedings.  The  plea  is  therefore  bad,  and 
should  be  struck  out ;  for  the  authorities  show  that  an  action  will 
lie  in  this  country  in  respect  of  an  act  committed  abroad  if  such 
act  is  actionable  in  this  country,  and  not  "justifiable"  where  com- 
mitted :  Scott  v.  Lord  Seymour  (1862,  1  H.  &  C.  219)  ;  Phillips  v. 
Eyre  (L.  R.  6  Q.  B.  1,  28)  ;  The  M.  Moxham  (1  P.  D.  107) ; 
The  Halley  1868,  L.  R.  2  P.  C.  193). 

Joseph  Walton,  Q.  C.  and  A.  J.  Ashton,  for  the  defendant. 
The  plea  amounts  to  this :  that  the  publication  of  the  alleged  libel 
could  not  be  made  the  subject  of  an  action  for  damages  in  Brazil, 
and  the  defendant  contends  that  if  not  actionable  there  it  is  not  ac- 
tionable here ;  and  it  is  no  answer  to  say  that  if  there  has  been  a 
libel  there  the  State  might  cause  criminal  proceedings  to  be  insti- 
tuted in  respect  of  it.  The  question  as  to  whether  the  alleged  tort 
is  or  is  not  actionable  in  Brazil  is  one  of  Brazilian  law,  and  the 
proper  course  would  be  to  send  out  a  commission  to  that  country 
for  the  purpose  of  inquiring  into  and  ascertaining  what  the  law  on 
the  subject  is,  instead  of  deciding  the  question  on  ihe  materials 
now  before  the  Court ;  and  if  it  turns  out  that  the  plaintiff  individ- 
ually cannot  by  any  civil  proceedings  in  Brazil  make  the  defendant 
liable  in  respect  of  this  alleged  libel,  no  action  will  lie  here,  and 
the  plea  will  be  good.  There  is  nothing  in  the  cases  cited  at  va- 
riance with  this. 

[They  referred  to  1  Smith's  Leading  Cases,  10th  ed.  p.  605; 
notes  to  Mostyn  v.  Fabrigas.     (1774,  1  Cowp.  161.)] 

Montague  Lush,  in  reply. 

Lopes,  L.  J.  I  am  of  opinion  that  this  appeal  ought  to  be 
allowed.  [The  Lord  Justice  then  referred  to  the  facts,  and,  after 
reading  the  plea,  continued : — ] 


IN   GENERAL.  137 

Now  that  plea,  as  it  stands,  appears  to  me  merely  to  go  to 
the  remedy.  It  says,  in  effect,  that  in  this  case  no  action  in  which 
damages  could  be  recovered  would  lie  in  Brazil,  and,  assuming 
that  any  damages  could  be  recovered  in  Brazil,  they  would  be 
special  damages  only.  Mr.  Walton  contends  that  that  is  not  the 
meaning  of  the  plea:  that  the  plea  is  intended  to  raise  a  larger 
question  than  that,  and  to  say  that  libel, cannot  be  made  the  sub- 
ject of  any  civil  proceedings  at  all  in  Brazil,  but  is  only  the  sub- 
ject-matter of  criminal  proceedings;  and,  for  the  purposes  of 
what  I  am  about  to  say,  I  will  assume  that  to  be  so. 

Xow  the  principle  applicable  in  the  present  case  appears  to 
me  to  be  this:  where  the  words  have  been  published  outside  the 
jurisdiction,  then,  in  order  to  maintain  an  action  here  on  the 
ground  of  a  tort  committed  outside  the  jurisdiction,  the  act  com- 
plained of  must  be  wrongful — I  use  the  word  "wrongful"  delib- 
erately— both  by  the  law  of  this  country,  and  also  by  the  law  of 
the  country  where  it  was  committed;  and  the  first  thing  we  have 
to  consider  is  whether  those  conditions  are  complied  with. 

In  the  case  of  Phillips  v.  Eyre  (L.  R.  6  Q.  B.  i)  Willes  J.  lays 
down  very  distinctly  what  the  requisites  are  in  order  to  found 
such  an  action.  He  says  this  (L.  R.  6  Q.  B.  i,  at  p.  28)  :  "As  a 
general  rule,  in  order  to  found  a  suit  in  England  for  a  wrong  al- 
leged to  have  been  committed  abroad,  two  conditions  must  be  ful- 
filled :  First,  the  wrong  must  be  of  such  a  character  that  it  would 
have  been  actionable  if  committed  in  England  ....  Secondly, 
the  act  must  not  have  been  justifiable  by  the  law  of  the  place 
where  it  was  done."  Then  in  The  M.  Moxham  (1  P.  D.  107) 
James  L.  J.,  in  the  course  of  his  judgment,  uses  these  words  (1  P. 
D.  107,  at  p.  in)  :  "It  is  settled  that  if  by  the  law  of  the  foreign 
country  the  act  is  lawful  or  is  excusable,  or  even  if  it  has  been 
legitimized  by  a  subsequent  act  of  the  Legislature,  then  this  Court 
will  take  into  consideration  that  state  of  the  law — that  is  to  say, 
if  by  the  law  of  the  foreign  country  a  particular  person  is  justified, 
or  is  excused,  or  has  been  justified  or  excused  for  the  thing  done, 
he  will  not  be  answerable  here." 

Both  those  cases  seem  to  me  to  go  this  length :  that,  in  order 
to  constitute  a  good  defence  to  an  action  brought  in  this  country 


138  PRIVATE    INTERNATIONAL   LAW. 

in  respect  of  an  act  done  in  a  foreign  country,  the  act  relied  on 
must  be  one  which  is  innocent  in  the  country  where  it  was  com- 
mitted. In  the  present  case  there  can  be  no  doubt  that  the  action 
lies,  for  it  complies  with  both  of  the  requirements  which  are  laid 
down  by  Willes  j.  The  act  was  committed  abroad,  and  was  ac- 
tionable here,  and  not  justifiable  by  the  law  of  the  place  where  it 
was  committed.  Both  those  conditions  are  complied  with ;  and, 
therefore,  the  publication  in  Brazil  is  actionable  here. 

It  then  follows,  directly  the  right  of  action  is  established  in 
this  country,  that  the  ordinary  incidents  of  that  action  and  the 
appropriate  remedies  ensue. 

Therefore,  in  this  case,  in  my  opinion,  damages  would  flow 
from  the  wrong  committed  just  as  they  would  in  any  action 
brought  in  respect  of  a  libel  published  in  this  country. 

It  is  contended  that  it  would  be  much  better  that  this  ques- 
tion should  not  be  decided  at  the  present  time,  but  that  a  commis- 
sion should  go  to  Brazil,  and  that  the  Brazilian  law  should  be  in- 
quired into.  If  our  view  is  correct,  it  seems  to  me  that  that  would 
be  a  great  waste  of  time  and  money,  because,  having  regard  to 
the  authorities  I  have  mentioned,  this  plea  is  absolutely  bad,  and 
ought  to  be  struck  out. 

Rigby,  L.  J.  I  am  of  the  same  opinion.  I  do  not  propose  to 
decide  this  case  on  any  technical  consideration  as  to  what  may 
be  the  precise  meaning  of  the  allegation  that  is  proposed  to  be 
introduced  into  the  defence ;  I  give  it  the  widest  possible  construc- 
tion it  can  reasonably  bear;  and  I  will  assume  it  to  involve  that 
no  action  for  damages,  or  even  no  civil  action  at  all,  can  be  main- 
tained in  Brazil  in  respect  of  a  libel  published  there.  But  it  does 
not  follow  from  that  that  the  libel  is  not  actionable  in  this  coun- 
try under  the  present  conditions,  and  having  regard  to  the  fact 
that  the  plaintiff  and  defendant  are  here. 

Willes  J.,  in  Phillips  v.  Eyre  (L.  R.  6  Q.  B.  i),  was  laying 
down  a  rule  which  he  expressed  without  the  slightest  modifica- 
tion, and  without  the  slightest  doubt  as  to  its  correctness;  and 
when  you  consider  the  care  with  which  the  learned  judge  pre- 
pared the  propositions  that  he  was  about  to  enunciate,  I  cannot 
doubt  that  the  change  from  "actionable"  in  the  first  branch  of  the 


IN   GENERAL.  139 

rule  to  "justifiable"  in  the  second  branch  of  it  was  deliberate. 
The  first  requisite  is  that  the  wrong  must  be  of  such  a  character 
that  it  would  be  actionable  in  England.  It  was  long  ago  settled 
that  an  action  will  lie  by  a  plaintiff  here  against  a  defendant  here, 
upon  a  transaction  in  a  place  outside  this  country.  But  though 
such  action  may  be  brought  here,  it  does  not  follow  that  it  will 
succeed  here,  for,  when  it  is  committed  in  a  foreign  country,  it 
may  turn  out  to  be  a  perfectly  innocent  act  according  to  the  law 
of  that  country ;  and  if  the  act  is  shewn  by  the  law  of  that  country 
to  be  an  innocent  act,  we  pay  such  respect  to  the  law  of  other 
countries  that  we  will  not  allow  an  action  to  be  brought  upon  it 
here.  The  innocency  of  the  act  in  the  foreign  country  is  an  an- 
swer to  the  action.  That  is  what  is  meant  when  it  i.s  said  that  the 
set  must  be  "justifiable"  by  the  law  of  the  place  where  it  was  done. 

It  is  not  really  a  matter  of  any  importance  what  the  nature 
of  the  remedy  for  a  wrong  in  a  foreign  country  may  be. 

The  remedy  must  be  according  to  the  law  of  the  country 
which  entertains  the  action.  Of  course,  the  plea  means  that  no 
action  can  be  brought  in  this  country  in  respect  of  the  libel  (if 
any)  in  Brazil.  But  I  think  the  rule  is  clear.  It  was  very  care- 
fully laid  down  by  Willes  J.  in  Phillips  v.  Eyre  (L.  R.  6  Q.  B.  i)  ; 
and  in  the  case  of  The  M.  Moxham  (i  P.  D.  107)  all  the  learned 
judges  of  the  Court  of  Appeal  in  their  judgments  laid  down  the 
law  without  hesitation  and  in  a  uniform  manner;  and  first  one 
judge  and  then  another  gave,  in  different  language  but  exactly  to 
the  same  purport  and  effect,  the  rule  enunciated  by  Willes  J.  So 
that  if  authority  were  wanting  there  is  a  decision  clearly  binding 
upon  us,  although  I  think  the  principle  is  sufficient  to  decide  the 
case. 

I  think  there  is  no  doubt  at  all  that  an  action  for  a  libel  pub- 
lished abroad  is  maintainable  here,  unless  it  can  be  shewn  to  be 
justified  or  excused  in  the  country  where  it  was  published.  James 
L.  J.  states  in  The  M.  Moxham  (1  P.  D.  107)  what  the  settled 
law  is.  Mellish  L.  J.  is  quite  as  clear  upon  that  point  as  James 
L.  J.  in  laying  down  the  general  rule;  and  Baggallay  L.  J.  also 
takes  the  same  view.  We  start,  then,  from  this :  that  the  act  in 
question  is  prima  facie  actionable  here,  and  the  only  thing  we 


140  PRIVATE   INTERNATIONAL   LAW. 

have  to  do  is  to  see  whether  there  is  any  peremptory  bar  to  our 
jurisdiction  arising  from  the  fact  that  the  act  we  are  dealing  with 
is  authorized,  or  innocent  or  excusable,  in  the  country  where  it 
was  committed.  If  we  cannot  see  that,  we  must  act  according 
to  our  own  rules  in  the  damages  (if  any)  which  we  may  choose 
to  give.  Here  we  cannot  see  it,  and  this  appeal  must  be  allowed 
with  costs. 

Appeal  Allowed. 

Solicitors :  Grant,  Bulcraig  &  Co.,  for  Parker,  Eyre  &  Moor- 
house,    Manchester;    Chester    &    Co.,  for    Crofton,  Craven  & 

Worthington,  Manchester. 

W.  W.  K. 


PENAL  LAWS. 

HUNTINGTON  v.  ATTRILL,  146  U.  S.  657,  (1892). 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  was  a  bill  in  equity,  filed  March  21,  1888,  in  the  Circuit 
Court  of  Baltimore  City,  by  Collis  P.  Huntington,  a  resident  of 
New  York,  against  the  Equitable  Gas  Light  Company  of  Balti- 
more, a  corporation  of  Maryland,  and  against  Henry  Y.  Attrill, 
his  wife  and  three  daughters,  all  residents  of  Canada,  to  set  aside 
a  transfer  of  stock  in  that  company,  made  by  him  for  their  benefit 
and  in  fraud  of  his  creditors,  and  to  charge  that  stock  with  the 
payment  of  a  judgment  recovered  by  the  plaintiff  against  him  in 
the  State  of  New  York,  upon  his  liability  as  a  director  in  a  New 
York  corporation,  under  the  statute  of  New  York  of  1875,  c.  611, 
the  material  provisions  of  which  are  copied  in  the  margin. 

The  bill  alleged  that  on  June  15,  1886,  the  plaintiff  recovered, 
in  the  Supreme  Court  of  the  State  of  New  York,  in  an  action 
brought  by  him  against  Attrill  on  March  21,  1883,  a  judgment  for 
the  sum  of  $100,240,  which  had  not  been  paid,  secured  or  satis- 
fied; and  that  the  cause  of  action  on  which  that  judgment  was 
recovered  was  as  follows:  On  February  29,  1880,  the  Rockaway 
Beach  Improvement  Company,  Limited,  of  which  Attrill  was  an 
incorporator  and  a  director,  became  a  corporation  under  the  law 
of  New  York,  with  a  capital   stock  of  $700,000.     On   June  15, 


PENAL    LAWS.  141 

1880,  the  plaintiff  lent  that  company  the  sum  of  $100,000,  to  be 
repaid  on  demand.  On  February  26,  1880,  Attrill  was  elected 
one  of  the  directors  of  the  company,  and  accepted  the  office,  and 
continued  to  act  as  a  director  until  after  January  29,  1881.  On 
June  30,  1880,  Attrill,  as  a  director  of  the  company,  signed  and 
made  oath  to,  and  caused  to  be  recorded,  as  required  by  the  law 
of  New  York,  a  certificate,  which  he  knew  to  be  false,  stating  that 
the  whole  of  the  capital  stock  of  the  corporation  had  been  paid  in, 
whereas  in  truth  no  part  had  been  paid  in ;  and  by  making  such  a 
false  certificate  became  liable,  by  the  law  of  New  York,  for  all  the 
debts  of  the  company  contracted  before  January  29,  1881,  includ- 
ing its  debt  to  the  plaintiff.  On  March  8,  1882,  by  proceedings 
in  a  court  of  New  York,  the  corporation  was  declared  to  be  in- 
solvent and  to  have  been  so  since  July,  1880,  and  was  dissolved. 
A  duly  exemplified  copy  of  the  record  of  that  judgment  was  an- 
nexed to  and  made  part  of  the  bill. 

The  bill  also  alleged  that  "at  the  time  of  its  dissolution  as 
aforesaid,  the  said  company  was  indebted  to  the  plaintiff  and  to 
other  creditors  to  an  amount  far  in  excess  of  its  assets ;  that  by  the 
law  of  the  State  of  New  York  all  the  stockholders  of  the  company 
were  liable  to  pay  all  its  debts,  each  to  the  amount  of  the  stock 
held  by  him,  and  the  defendant,  Henry  Y.  Attrill,  was  liable  at 
said  date  and  on  April  14,  1882,  as  such  stockholder,  to  the  amount 
of  $340,000,  the  amount  of  stock  held  by  him,  and  was  on  both 
said  dates  also  severally  and  directly  liable  as  a  director,  having 
signed  the  false  report  above  mentioned,  for  all  the  debts  of  said 
company  contracted  between  February  26,  1880,  and  January  29, 
1881,  which  debts  aggregate  more  than  the  whole  value  of  the 
property  owned  by  said  Attrill." 

The  bill  further  alleged  that  Attrill  was  in  March,  1882,  and 
had  ever  since  remained,  individually  liable  in  a  large  amount  over 
and  above  the  debts  for  which  he  was  liable  as  a  stockholder  and 
director  in  the  company ;  and  that  he  was  insolvent,  and  had  se- 
creted and  concealed  all  his  property  for  the  purpose  of  defraud- 
ing his  creditors. 

The  bill  then  alleged  that  in  April,  1882,  Attrill  acquired  a 
large  amount  of  stock  in  the  Equitable  Gas  Light  Company  of 


142  PRIVATE   JNTERNATIONAL   LAW. 

Baltimore,  and  forthwith  transferred  into  his  own  name  as  trus- 
tee for  his  wife  iooo  shares  of  such  stock,  and  as  trustee  for  each 
of  his  three  daughters  250  shares  of  the  same,  without  valuable 
consideration,  and  with  intent  to  delay,  hinder  and  defraud  his 
creditors,  and  especially  with  the  intent  to  delay,  hinder  and  de- 
fraud this  plaintiff  of  his  lawful  suits,  damages,  debts  and  de- 
mands against  Attrill  arising  out  of  the  cause  of  action  on  which 
the  aforesaid  judgment  was  recovered,  and  out  of  the  plaintiff's 
claim  against  him  as  a  stockholder;  that  the  plaintiff  in  June, 
1880,  and  ever  since  was  domiciled  and  resident  in  the  State  of 
New  York,  and  that  from  February,  1880,  to  December  6,  1884, 
Attrill  was  domiciled  and  resident  in  that  State,  and  that  his  trans- 
fers of  stock  in  the  gas  company  were  made  in  the  city  of  New 
York  where  the  principal  office  of  the  company  then  was,  and 
where  all  its  transfers  of  stock  were  made;  and  that  those  trans- 
fers were,  by  the  laws  of  New  York,  as  well  as  by  those  of  Mary- 
land, fraudulent  and  void  as  against  the  creditors  of  Attrill,  in- 
cluding the  creditors  of  the  Rockaway  Company,  and  were  fraud- 
ulent and  void  as  against  the  plaintiff. 

The  bill  further,  by  distinct  allegations,  averred  that  those 
transfers,  unless  set  aside  and  annulled  by  a  court  of  equity, 
would  deprive  the  plaintiff  of  all  his  rights  and  interests  of  every 
sort  therein,  to  which  he  was  entitled  as  a  creditor  of  Attrill  at 
the  time  when  those  fraudulent  transfers  were  made;  and  "that 
the  said  fraudulent  transfers  were  wholly  without  legal  considera- 
tion, were  fraudulent  and  void,  and  should  be  set  aside  by  a  court 
of  equity." 

The  bill  prayed  that  the  transfer  of  shares  in  the  gas  com- 
pany be  declared  fraudulent  and  void,  and  executed  for  the  pur- 
pose of  defrauding  the  plaintiff  out  of  his  claim  as  existing  cred- 
itor; that  the  certificates  of  those  shares  in  the  name  of  Attrill  as 
trustee  be  ordered  to  be  brought  into  court  and  cancelled;  and 
that  the  shares  "be  decreed  to  be  subject  to  the  claim  of  this  plain- 
tiff on  the  judgment  aforesaid,"  and  to  be  sold  by  a  trustee  ap- 
pointed by  the  court,  and  new  certificates  issued  by  the  gas  com- 
pany to  the  purchasers ;  and  for  further  relief. 

One  of  the  daughters  demurred  to  the  bill,  because  it  showed 


PENAL    LAWS.  143 

that  the  plaintiff's  claim  was  for  the  recovery  of  a  penalty  against 
Attrill  arising  under  a  statute  of  the  State  of  New  York,  and  be- 
cause it  did  not  state  a  case  which  entitled  the  plaintiff  to  any 
relief  in  a  court  of  equity  in  the  State  of  Maryland. 

By  a  stipulation  of  counsel,  filed  in  the  cause,  it  was  agreed 
that,  for  the  purposes  of  the  demurrer,  the  bill  should  be  treated 
as  embodying  the  New  York  statute  of  June  21,  1875;  and  that 
the  Rockaway  Beach  Improvement  Company,  Limited,  was  incor- 
porated under  the  provisions  of  that  statute. 

The  Circuit  Court  of  Baltimore  City  overruled  the  demurrer. 
On  appeal  to  the  Court  of  Appeals  of  the  State  of  Maryland,  the 
order  was  reversed,  and  the  bill  dismissed.     70  Maryland,  191. 

The  ground  most  prominently  brought  forward  and  most 
fully  discussed  in  the  opinion  of  the  majority  of  the  court,  deliv- 
ered by  Judge  Bryan,  was  that  the  liability  imposed  by  section  21 
of  the  statute  of  New  York  upon  officers  of  a  corporation,  making 
a  false  certificate  of  its  condition,  was  for  all  its  debts,  without 
inquiring  whether  a  creditor  had  been  deceived  and  induced  by 
deception  to  lend  his  money  or  to  give  credit,  or  whether  he  had 
incurred  loss  to  any  extent  bv  the  inability  of  the  corporation  to 
pay,  and  without  limiting  the  recovery  to  the  amount  of  loss  sus- 
tained, and  was  intended  as  a  punishment  for  doing  any  of  the 
forbidden  acts,  and  was,  therefore,  in  view  of  the  decisions  in  that 
State  and  in  Maryland,  a  penalty  which  could  not  be  enforced  in 
the  State  of  Maryland ;  and  that  the  judgment  obtained  in  New 
York  for  this  penalty,  while  it  "merged  the  original  cause  of 
action  so  that  a  suit  cannot  be  again  maintained  upon  it,''  and  "is 
also  conclusive  evidence  of  its  existence  in  the  form  and  under 
the  circumstances  stated  in  the  pleadings,"  yet  did  not  change  the 
nature  of  the  transaction,  but,  within  the  decision  of  this  court  in 
Wisconsin  v.  Pelican  Ins.  Co.,  127  U.  S.  265,  was  in  its  "essential 
nature  and  real  foundation"  the  same  as  the  original  cause  of 
action,  and  therefore  a  suit  could  not  be  maintained  upon  such  a 
judgment  beyond  the  limits  of  the  State  in  which  it  was  rendered, 
pp.  193-198. 

The  court  then  took  up  the  clause  of  the  bill,  above  quoted, 
in  which  it  was  sought  to  charge  Attrill  as  originally  liable  under 


144  PRIVATE    INTERNATIONAL   LAW. 

the  statute  of  New  York,  both  as  a  stockholder  and  as  a  director ; 
and  observing  that  "this  liability  is  asserted  to  exist  independently 
of  the  judgment,"  summarily  disposed  of  it,  upon  the  grounds 
that  it  could  not  attach  to  him  as  a  stockholder,  because  he  had  not 
been  sued,  as  required  by  the  New  York  statute,  within  two  years 
after  the  plaintiff's  debt  became  due;  nor  as  a  director,  because 
"ttie  judgment  against  Attrill  for  having  made  the  false  report 
certainly  merges  all  right  of  action  against  him  on  this  account ;" 
but  that,  if  he  was  liable  at  the  times  and  en  the  grounds  "men- 
tioned in  this  clause  of  tne  bill,"  this  liability  was  barred  by  the 
statute  of  limitations  of  Maryland,     pp.  19S,  199. 

Having  thus  decided  against  the  plaintiff's  claim  under  his 
judgment,  upon  the  single  ground  that  it  was  for  a  penalty  under 
the  statute  of  New  York,  and  therefore  could  not  be  enforced  in 
Maryland ;  and  against  any  original  liability  under  the  statute,  for 
various  reasons ;  the  opinion  concluded :  "Upon  the  whole,  it  ap- 
pears to  us  that  the  complainant  has  no  cause  of  action,  which  he 
can  maintain  in  this  State."     p.  199. 

Judge  Stone,  with  whom  Judge  McSherry  concurred,  dis- 
sented from  the  opinion  of  the  majority  of  the  court,  upon  the 
ground  that  it  did  not  give  due  effect  to  the  act  of  Congress, 
passed  in  pursuance  of  the  Constitution  of  the  United  States,  and 
providing  that  the  records  of  judgments  rendered  by  a  court  of 
any  State  shall  have  such  faith  and  credit  given  to  them  in  every 
Court  within  the  United  States  as  they  have  by  law  or  usage  in 
the  Courts  of  the  State  whence  they  are  taken.  Act  of  May  26, 
1790,  c.  11,  1  Stat.  122;  Rev.  Stat.  §  905.  He  began  his  opinion 
by  saying:  "I  look  upon  the  principal  point  as  a  Federal  question, 
and  am  governed  in  my  views  more  by  my  understanding  of  the 
decisions  of  the  Supreme  Court  of  the  United  States  than  by  the 
decisions  of  the  state  courts."  And  he  concluded  thus:  "I  think 
the  Supreme  Court,  in  127  U.  S.,  meant  to  confine  the  operation 
of  the  rule  that  no  country  will  execute  the  penal  laws  of  another 
to  such  laws  as  are  properly  classed  as  criminal.  It  is  not  very 
easy  to  give  any  brief  definition  of  a  criminal  law.  It  may  per- 
haps be  enough  to  say  that,  in  general,  all  breaches  of  duty  that 
confer  no  rights  upon    an  individual    or  person,  and    which  the 


PENAL    LAWS.  145 

State  alone  can  take  cognizance  of,  are  in  their  nature  criminal, 
and  that  all  such  come  within  the  rule.  But  laws  which,  while 
imposing  a  duty,  at  the  same  time  confer  a  right  upon  the  citizens 
to  claim  damages  for  its  nonperformance,  are  not  criminal.  If  all 
the  laws  of  the  latter  description  are  held  penal  in  the  sense  of 
criminal,  that  clause  in  the  Constitution  which  relates  to  records 
and  judgments  is  of  comparatively  little  value.  There  is  a  large, 
and  constantly  increasing,  number  of  cases  that  may  in  one  sense 
be  termed  penal,  but  can  in  no  sense  be  classed  as  criminal.  Ex- 
amples of  these  may  be  found  in  suits  for  damages  for  negligence 
in  causing  death,  for  double  damages  for  the  injury  to  stock 
where  railroads  have  neglected  the  state  laws  for  fencing  in  their 
tracks,  and  the  liability  of  officers  of  corporations  for  the  debts 
of  the  company  by  reason  of  their  neglect  of  a  plain  duty  imposed 
by  statute.  I  cannot  think  that  judgments  on  such  claims  are  not 
within  the  protection  given  by  the  Constitution  of  the  United 
States.  I  therefore  think  the  order  in  this  case  should  be  af- 
firmed."    pp.  200-205. 

A  writ  of  error  was  sued  out  by  the  plaintiff,  and  allowed  by 
the  Chief  Justice  of  the  Court  of  Appeals  of  Maryland,  upon  the 
ground  "that  the  said  Court  of  Appeals  is  the  highest  court  of 
law  or  equity  in  the  State  of  Maryland,  in  which  a  decision  in  the 
said  suit  could  be  had ;  that  in  said  suit  a  right  and  privilege  are 
claimed  under  the  Constitution  and  statutes  of  the  United  States, 
and  the  decision  is  against  the  right  and  privilege  set  up  and 
claimed  by  your  petitioner  under  said  Constitution  and  statutes ; 
and  that  in  said  suit  there  is  drawn  in  question  the  validity  of  1 
statute  of  and  an  authority  exercised  under  the  United  States,  and 
the  decision  is  against  the  validity  of  such  statute  and  of  such 
authority." 

It  thus  appears  that  the  judgment  recovered  in  New  York 
was  made  the  foremost  ground  of  the  bill,  was  fully  discussed  and 
distinctly  passed  upon  by  the  majority  of  the  Court  of  Appeals  of 
Maryland,  and  was  the  only  subject  of  the  dissenting  opinion ; 
and  that  the  court,  without  considering  whether  the  validity  of 
the  transfers  impeached  as  fraudulent  was  to  be  governed  by  the 
law  of  New  York,  or  by  the  law  of  Maryland ;  and  without  a  sug- 


146  PRIVATE    INTERNATIONAL   LAW. 

« 

gestion  that  those  transfers,  alleged  to  have  been  made  by  Attrill 
with  intent  to  delay,  hinder  and  defraud  all  his  creditors,  were 
not  voidable  by  subsequent,  as  well  as  by  existing  creditors,  or 
that  they  could  not  be  avoided  by  the  plaintiff,  claiming  under  the 
judgment  recovered  by  him  against  Attrill  after  those  transfers 
were  made;  declined  to  maintain  his  right  to  do  so  by  virtue  of 
that  judgment,  simply  because  the  judgment  had,  as  the  court 
held,  been  recovered  in  another  State  in  an  action  for  a  penalty. 

The  question  whether  due  faith  and  credit  were  thereby  de- 
nied to  the  judgment  rendered  in  another  State  is  a  federal  ques- 
tion, of  which  this  court  has  jurisdiction  on  this  writ  of  error. 
Green  v.  Van  Buskirk,  5  Wall.  307,  311 ;  Crapo  v.  Kelly,  16  Wall. 
610,  619;  Dupasseur  v.  Rochereau,  21  Wall.  130,  134;  Crescent 
City  Co.  v.  Butchers'  Union,  120  U.  S.  141,  146,  147;  Cole  v.  Cun- 
ningham, 133  U.  S.  107;  Carpenter  v.  Strange,  141  U.  S.  87,  103. 

In  order  to  determine  this  question,  it  will  be  necessary,  in 
the  first  place,  to  consider  the  true  scope  and  meaning  of  the  fun- 
damental maxim  of  international  law,  stated  by  Chief  Justice 
Marshall  in  the  fewest  possible  words :  "The  courts  of  no  country 
execute  the  penal  laws  of  another."  The  Antelope,  10  Wheat. 
66,  123.  In  interpreting  this  maxim,  there  is  danger  of  being 
misled  by  the  different  shades  of  meaning  allowed  to  the  word 
"penal"  in  our  language. 

In  the  municipal  law  of  England  and  America,  the  words 
"penal"  and  "penalty"  have  been  used  in  various  senses.  Strictly 
and  primarily,  they  denote  punishment,  whether  corporal  or  pe- 
cuniary, imposed  and  enforced  by  the  State,  for  a  crime  or  offence 
against  its  laws.  United  States  v.  Reisinger,  128  U.  S.  398,  402 ; 
United  States  v.  Chouteau,  102  U.  S.  603,  611.  But  they  are  also 
commonly  used  as  including  any  extraordinary  liability  to  which 
the  law  subjects  a  wrongdoer  in  favor  of  the  person  wronged,  not 
limited  to  the  damages  suffered.  They  are  so  elastic  in  meaning 
as  even  to  be  familiarly  applied  to  cases  of  private  contracts, 
wholly  independent  of  statutes,  as  when  we  speak  of  the  "penal 
sum"  or  "penalty"  of  a  bond.  In  the  words  of  Chief  Justice  Mar- 
shall :  "In  general,  a  sum  of  money  in  gross,  to  be  paid  for  the 
non-performance  of  an  agreement,  is  considered  as  a  penalty,  the 


PENAL    LAWS.  147 

legal  operation  of  which  is  to  cover  the  damages  which  the  party, 
in  whose  favor  the  stipulation  is  made,  may  have  sustained  from 
the  breach  of  contract  by  the  opposite  party."  Tayloe  v  Sandi- 
ford,  7  Wheat.  13,  17. 

Penal  laws,  strictly  and  properly,  are  those  imposing  punish 
ment  for  an  offence  committed  against  the  State,  and  which,  by 
the  English  and  American  constitutions,  the  executive  of  the  State 
has  the  power  to  pardon.  Statutes  giving  a  private  action  against 
the  wrongdoer  are  sometimes  spoken  of  as  penal  in  their  nature, 
but  in  such  cases  it  has  been  pointed  out  that  neither  the  liability 
imposed  nor  the  remedy  given  is  strictly  penal. 

The  action  of  an  owner  of  property  againsc  the  hundred  to 
recover  damages  caused  by  a  mob  was  said  by  Justices  Willes  and 
Buller  to  be  "penal  against  the  hundred,  but  certainly  remedial  as 
to  the  sufferer."  Hyde  v.  Cogan,  2  Doug.  699,  705,  706.  A  stat- 
ute giving  the  right  to  recover  back  money  lost  at  gaming,  and, 
if  the  loser  does  not  sue  within  a  certain  time,  authorizing  a  qui 
tain  action  to  be  brought  by  any  other  person  for  threefold  the 
amount,  has  been  held  to  be  remedial  as  to  the  loser,  though  penal 
as  regards  the  suit  by  a  common  informer.  Bones  v.  Booth,  2  W. 
Bl.  1226;  Brandon  v.  Pate,  2  H.  Bl.  308;  Grace  v.  M'Elroy,  1  Al- 
len, 563 ;  Read  v.  Stewart,  129  Mass.  407,  410;  Cole  v.  Groves,  134 
Mass.  471.  As  said  by  Mr.  Justice  Ashhurst  in  the  King's  Bench, 
and  repeated  by  Mr.  Justice  Wilde  in  the  Supreme  Judicial  Court 
of  Massachusetts,  "it  has  been  held,  in  many  instances,  that  where 
a  statute  gives  accumulative  damages  to  the  party  grieved,  it  is 
not  a  penal  action."  Woodgate  v.  Knatchbull,  2  T.  R.  148,  154; 
Read  v.  Chelmsford,  16  Pick.  128,  132.  Thus  a  statute  giving  to 
a  tenant,  ousted  without  notice,  double  the  yearly  value  of  the 
premises  against  the  landlord,  has  been  held  to  be  "not  like  a 
penal  law  where  a  punishment  is  imposed  for  a  crime,"  but  "rather 
as  a  remedial  than  a  penal  law,"  because  "the  act  indeed  does  give 
a  penalty,  but  it  is  to  the  party  grieved."  Lake  v.  Smith,  1  Bos. 
&  Pul.  (N.  R.)  174,  179,  180,  181 ;  Wilkinson  v.  Colley,  5  Burrow, 
2694,  2698.  So  in  an  action  given  by  a  statute  to  a  traveller  in- 
jured through  a  defect  in  a  highway,  for  double  damages  against 
the  town,  it  was  held  unnecessary  to  aver  that  the  facts  constituted 


148  PRIVATE    INTERNATIONAL   LAW. 

an  offence,  or  to  conclude  against  the  form  of  the  statute,  because, 
as  Chief  Justice  Shaw  said :  "The  action  is  purely  remedial,  and 
has  none  of  the  characteristics  of  a  penal  prosecution.  All  dam- 
ages for  neglect  or  breach  of  duty  operate  to  a  certain  extent  as 
punishment;  but  the  distinction  is  that  it  is  prosecuted  for  the 
purpose  of  punishment,  and  to  deter  others  from  offending  in  like 
manner.  Here  the  plaintiff  sets  out  the  liability  of  the  town  to 
repair,  and  an  injury  to  himself  from  a  failure  to  perform  that 
duty.  The  law  gives  him  enhanced  damages;  but  still  they  are 
recoverable  to  his  own  use,  and  in  form  and  substance  the  suit 
calls  for  indemnity."     Reed  v.  Northiield,  13  Pick.  94,  100,  101. 

The  test  whether  a  law  is  penal,  in  the  strict  and  primary- 
sense,  is  whether  the  wrong  sought  to  be  redressed  is  a  wrong  to 
the  public,  or  a  wrong  to  the  individual,  according  to  the  familiar 
classification  of  Blackstone :  "Wrongs  are  divisible  into  two  sorts 
or  species:  private  wrongs  and  public  wrongs.  The  former  are 
an  infringement  or  privation  of  the  private  or  civil  rights  belong- 
ing to  individuals,  considered  as  individuals;  and  are  thereupon 
frequently  termed  civil  injuries:  the  latter  are  a  breach  and  viola- 
tion of  public  rights  and  duties,  which  affect  the  whole  commu- 
nity, considered  as  a  community;  and  are  distinguished  by  the 
harsher  appellation  of  crimes  and  misdemeanors."     3  Bl.  Com.  2. 

Laws  have  no  force  of  themselves  beyond  the  jurisdiic-on  of 
the  State  which  enacts  them,  and  can  have  extra-territorial  effect 
only  by  the  comity  of  other  States.  The  general  rules  of  inter- 
national comity  upon  this  subject  were  well  summed  up,  before 
the  American  Revolution,  by  Chief  Justice  De  Grey,  as  reported 
by  Sir  William  Blackstone :  "Crimes  are  in  their  nature  local,  and 
the  jurisdiction  of  crimes  is  local.  And  so  as  to  the  rights  of  real 
property,  the  subject  being  fixed  and  immovable.  But  personal 
injuries  are  of  a  transitory  nature,  and  sequuntur  forum  rei." 
Rafael  v.  Verelst,  2  W.  B.  1055,  1058. 

Crimes  and  offences  against  the  laws  of  any  State  can  only 
be  denned,  prosecuted  and  pardoned  by  the  sovereign  authority 
of  that  State;  and  the  authorities,  legislative,  executive  or  judicial, 
of  other  States  take  no  action  with  regard  to  them,  except  by  way 
of  extradition  to  surrender  offenders  to  the  State  whose  la>.vs  they 
have  violated,  and  whose  peace  they  have  broken. 


PENAL    LAWS.  149 

Proceedings  in  rem  to  determine  the  title  to  land  must  nec- 
essarily be  brought  in  the  State  within  whose  borders  the  land  is 
situated,  and  whose  courts  and  officers  alone  can  put  the  party  in 
possession.  Whether  actions  to  recover  pecuniary  damages  for 
trespasses  to  real  estate,  "of  which  the  causes,"  as  observed  by 
Mr.  Westlake  (Private  International  Law,  3d  ed.  p.  213),  "could 
not  have  occurred  elsewhere  than  where  they  did  occur,"  are 
purely  local,  or  may  be  brought  abroad,  depends  upon  the  ques- 
tion whether  they  are  viewed  as  1  elating  to  the  real  estate,  or  only 
as  affording  a  personal  remedy.  By  the  common  law  of  England, 
adopted  in  most  of  the  States  of  the  Union,  such  actions  are  re- 
garded as  local,  and  can  be  brought  only  where  the  land  is  sit- 
uated. Doulson  v.  Matthews,  4  T.  R.  503 ;  McKenna  v.  Fisk,  1 
How.  241,  248.  But  in  some  States  and  countries  they  are  re- 
garded as  transitory,  like  other  personal  actions ;  and  whether  an 
action  for  trespass  to  land  in  one  State  can  be  brought  in  another 
State  depends  on  the  view  which  the  latter  State  takes  of  the  na- 
ture of  the  action.  For  instance,  Chief  Justice  Marshall  held  that 
an  action  could  not  be  maintained  in  Virginia,  by  whose  law  it 
was  local,  for  a  trespass  to  land  in  New  Orleans.  Livingston  v. 
Jefferson,  1  Brock.  203.  On  the  other  hand,  an  action  for  a  tres- 
pass to  land  in  Illinois,  where  the  rule  of  the  common  law  pre- 
vailed, was  maintained  in  Louisiana,  Chief  Justice  Eustis  saying : 
"The  present  action  is,  under  our  laws,  a  personal  action,  and  is 
not  distinguished  from  any  ordinary  civil  action  as  to  the  place 
or  tribunal  in  which  it  may  be  brought."  Holmes  v.  Barclay,  4 
La.  Ann.  63.  And  in  a  very  recent  English  case,  in  which  the 
judges  differed  in  opinion  upon  the  question  whether,  since  local 
venue  has  been  abolished  in  England,  an  action  can  be  maintained 
there  for  a  trespass  to  land  in  a  foreign  country,  all  agreed  that 
this  question  depended  on  the  law  of  England.  Companhia  de 
Mocambique  v.  British  South  Africa  Co.  ( 1892)  2  Q.  B.  358.  See 
also  Cragin  v.  Lovell,  88  N.  Y.  258;  Allin  v.  Connecticut  River 
Lumber  Co.,  150  Mass.  560. 

In  order  to  maintain  an  action  for  an  injury  to  the  person  or 
to  movable  property,  some  courts  have  held  that  the  wrong  must 
be  one  which  would  be  actionable  by  the  law  of  the  place  where 


150  PRIVATE    INTERNATIONAL   LAW. 

the  redress  is  sought,  as  well  as  by  the  law  of  the  place  where  the 
wrong  was  done.  See,  for  example,  The  Halley,  L.  R.  2  P.  C. 
193,  204;  Phillips  v.  Eyre,  L.  R.  6  Q.  B.  1,  28,  29;  The  M.  M ox- 
ham,  1  P.  D.  107,  in;  Wooden  v.  Western  New  York  &  Penn- 
sylvania Railroad,  126  N.  Y.  10;  Ash  v.  Baltimore  &  Ohio  Rail- 
road, 72  Maryland  144.  But  such  is  not  the  law  of  this  court. 
By  our  law,  a  private  action  may  be  maintained  in  one  State,  if 
not  contrary  to  its  own  policy,  for  such  a  wrong  done  in  another 
and  actionable  there,  although  a  like  wrong  would  not  be  action- 
able in  the  State  where  the  suit  is  brought.  Smith  v.  Condry,  1 
How.  28;  The  Lnina,  7  Wall.  53,  64;  The  Scotland,  105  U.  S.  24, 
29;  Dennick  v.  Railroad  Co.,  103  U.  S.  11 ;  Texas  &  Pacific  Rail- 
way v.  Cox,  145  U.S.  593- 

Upon  the  question  what  are  to  be  considered  penal  laws  of 
one  country,  within  the  international  rule  which  forbids  such  laws 
to  be  enforced  in  any  other  country,  so  much  reliance  was  placed 
by  each  party  in  argument  upon  the  opinion  of  this  court  in  Wis- 
consin v.  Pelican  Ins.  Co.,  127  U.  S.  265,  that  it  will  be  convenient 
to  quote  from  that  opinion  the  principal  propositions  there  af- 
firmed: 

"The  rule  that  the  courts  of  no  country  execute  the  penal 
laws  of  anoth  jr  applies  not  only  to  prosecutions  and  sentences  for 
crimes  and  misdemeanors,  but  to  all  suits  in  favor  of  the  State 
for  the  recovery  of  pecuniary  penalties  for  any  violation  of  stat- 
utes for  the  protection  of  its  revenue,  or  other  municipal  laws, 
and  to  all  judgments  for  such  penalties."     p.  290. 

"The  application  of  the  rule  to  the  courts  of  the  several  States 
and  of  the  United  States  is  not  affected  by  the  provisions  of  the 
Constitution  and  of  thQ  act  of  Congress,  by  which  the  judgments 
of  the  courts  of  any  State  are  to  have  such  faith  and  credit  given 
to  them  in  every  court  within  the  United  States  as  they  have  by 
law  or  usage  in  the  Sta'e  in  which  they  were  rendered."     p.  291. 

"The  essential  nature  and  real  foundation  of  a  cause  of  ac- 
tion are  not  changed  by  recovering  judgment  upon  it;  and  the 
technical  rules,  which  regard  the  original  claim  as  merged  in  the 
judgment,  and  the  judgment  as  implying  a  promise  by  the  de- 
fendant to  pay  it,  do  not  preclude  a  court,  to  which  a  judgment 


PENAL   LAWS.  151 

is  presented  for  affirmative  action,  (while  it  cannot  go  behind  the 
judgment  for  the  purpose  of  examining  into  the  validity  of  the 
claim,)  from  ascertaining  whether  the  claim  is  really  one  of  such 
a  nature  that  the  court  is  authorized  to  enforce  it."     pp.  292,  293. 

"The  statute  of  Wisconsin,  under  which  the  State  recovered 
in  one  of  her  own  courts  the  judgment  now  and  here  sued  on, 
was  in  the  strictest  sense  a  penal  statute,  imposing  a  penalty  upon 
any  insurance  company  of  another  State,  doing  business  in  the 
State  of  Wisconsin  without  having  deposited  with  the  proper 
officer  of  the  State  a  full  statement  of  its  property  and  business 
during  the  previous  year.  The  cause  of  action  was  not  any  pri- 
vate injury,  but  solely  the  offence  committed  against  the  State  by 
violating  her  law.  The  prosecution  was  in  the  name  of  the  State, 
and  the  whole  penalty,  when  recovered,  would  accrue  to  the 
State."     p.  299. 

Such  were  the  grounds  upon  which  it  was  adjudged  in  that 
case  that  this  court,  under  the  provision  of  the  Constitution  giving 
it  original  jurisdiction  of  actions  between  a  State  and  citizens  of 
another  State,  had  no  jurisdiction  of  an  action  by  a  State  upon  a 
judgment  recovered  by  it  in  one  of  its  own  courts  against  a  citi- 
zen or  a  corporation  of  another  State  for  a  pecuniary  penalty  for 
a  violation  of  its  municipal  law. 

Upon  similar  grounds,  the  courts  of  a  State  cannot  be  com- 
pelled to  take  jurisdiction  of  a  suit  to  recover  a  like  penalty  for  a 
violation  of  a  law  of  the  United  States.  Martin  v.  Hunter,  1 
Wheat.  304,  330,  337;  United  States  v.  Lathrop,  17  Johns.  4,  265 ; 
Delafield  v.  Illinois,  2  Hill  (N.  Y.)  159,  169;  Jackson  v.  Rose,  2 
Virg.  Cas.  34;  Ely  v.  Peck,  7  Conn.  239;  Davison  v.  Champlin, 
7  Conn.  244;  Haney  v.  Sharp,  1  Dana,  442 ;  State  v.  Pike,  15  N.H. 
83,  85 ;  Ward  v.  Jenkins,  10  Met.  583,  587;  1  Kent  Com.  402-404. 
The  only  ground  ever  suggested  for  maintaining  such  suits  in  a 
state  court  is  that  the  laws  of  the  United  States  are  in  effect  laws 
of  each  State.  Claflin  v.  Houseman,  98  U.  S.  130,  137;  Piatt,  J., 
in  United  States  v.  Lathrop,  17  Johns.  22;  Ordzuay  v.  Central 
Bank,  47  Maryland,  217.  But  in  Claflin  v.  Houseman  the  point 
adjudged  was  that  an  assignee  under  the  bankrupt  law  of  the 
United  States  could  assert  in  a  state  court  the  title  vested  in  him 


152  PRIVATE    INTERNATIONAL   LAW. 

by  the  assignment  in  bankruptcy;  and  Mr.  Justice  Bradley,  who 
delivered  the  opinion  in  that  case,  said  the  year  before,  when  sit- 
ting in  the  Circuit  Court,  and  speaking  of  a  prosecution  in  a  court 
of  the  State  of  Georgia  for  perjury  committed  in  that  State  in  tes- 
tifying before  a  commissioner  of  the  Circuit  Court  of  the  United 
States,  "It  would  be  a  manifest  incongruity  for  one  sovereignty 
to  punish  a  person  for  an  offence  committed  against  the  laws  of 
another  sovereignty."  Ex  parte  Bridges,  2  Woods,  428,  430. 
See  also  Loney's  case,  134  U.  S.  372. 

Beyond  doubt,  (except  in  cases  removed  from  a  state  court 
in  obedience  to  an  express  act  of  Congress  in  order  to  protect 
rights  under  the  Constitution  and  laws  of  the  United  States),  a 
Circuit  Court  of  the  United  States  cannot  entertain  jurisdiction 
of  a  suit  in  behalf  of  the  State,  or  of  the  people  thereof,  to  recover 
a  penalty  imposed  by  way  of  punishment  for  a  violation  of  a  stat- 
ute of  the  State,  "the  courts  of  the  United  States,"  as  observed  by 
Mr.  Justice  Catron,  delivering  a  judgment  of  this  court,  "having 
no  power  to  execute  the  penal  laws  of  the  individual  States." 
Gwin  v.  Breedlove,  2  How.  29,  36,  37 ;  Gwin  v.  Barton,  6  How.  7; 
Iowa  v.  Chicago  &c.  Railway,  37  Fed.  Rep.  407 ;  Ferguson  v. 
Ross,  38  Fed.  Rep.  161 ;  Texas  v.  Day  Land  &  Cattle  Co.,  41  Fed. 
Rep.  228 ;  Dey  v.  Chicago  &c.  Railway,  45  Fed.  Rep.  82. 

For  the  purposes  of  extra-territorial  jurisdiction,  it  may  well 
be  that  actions  by  a  common  informer,  called,  as  Blackstone  says, 
"popular  actions,  because  they  are  given  to  the  people  in  general," 
to  recover  a  penalty  imposed  by  statute  for  an  offence  against  the 
law,  and  which  may  be  barred  by  a  pardon  granted  before  action 
brought,  may  stand  on  the  same  ground  as  suits  brought  for  such 
a  penalty  in  the  name  of  the  State  or  of  its  officers,  because  they 
are  equally  brought  to  enforce  the  criminal  law  of  the  State.  3  Bl. 
Com.  161,  162;  2  Bl.  Com.  437,  438;  Adams  v.  Woods,  2  Cranch, 
336;  Gwin  v.  Breedlove,  above  cited;  United  States  v.  Connor, 
138  U  S.  61,  66;  Bryant  v.  Ela,  Smith  (N.  H.)  396.  And  per- 
sonal disabilities  imposed  by  the  law  of  a  State,  as  an  incident  or 
consequence  of  a  judicial  sentence  or  decree,  by  way  of  punish- 
ment of  an  offender,  and  not  for  the  benefit  of  any  other  person 
— such  as  attainder,  or  infamy,  or  incompetency  of  a  convict  to 


PENAL  LAWS.  153 

testify,  or  disqualification  of  the  guilty  party  to  a  cause  of  divorce 
for  adultery  to  marry  again — are  doubtless  strictly  penal,  and 
therefore  have  no  extra-territorial  operation.  Story  on  Conflict 
of  Laws,  §§  91,  92 ;  Dicey  on  Domicil,  162 ;  Folliott  v.  Ogden,  1  H. 
Bl.  123,  and  3  T.  R.  726 ;  Logan  v.  United  States,  144  U.  S.  263, 
303 ;  Dickson  v.  Dickson,  1  Yerger,  1 10 ;  Ponsford  v.  Johnson, 
2  Blatchford,  15;  Commonwealth  v.  Lane,  113  Mass.  458,  471; 
Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  28,  29. 

The  question  whether  a  statute  of  one  State,  which  in  some 
aspects  may  be  called  penal,  is  a  penal  law  in  the  international 
sense,  so  that  it  cannot  be  enforced  in  the  courts  of  another  State, 
depends  upon  the  question  whether  its  purpose  is  to  punish  an 
offence  against  the  public  justice  of  the  State,  or  to  afford  a  pri- 
vate remedy  to  a  person  injured  by  the  wrongful  act.  There 
could  be  no  better  illustration  of  this  than  the  decision  of  this 
court  in  Dennick  v.  Railroad  Co.,  103  U.  S.  11. 

In  that  case,  it  was  held  that,  by  virtue  of  a  statute  of  New 
Jersey  making  a  person  or  corporation,  whose  wrongful  act,  neg- 
lect or  default  should  cause  the  death  of  any  person,  liable  to  an 
action  by  his  administrator,  for  the  benefit  of  his  widow  and  next 
of  kin,  to  recover  damages  for  the  pecuniary  injury  resulting  to 
them  from  his  death,  such  an  action,  where  the  neglect  and  the 
death  took  place  in  New  Jersey,  might,  upon  general  principles 
of  law,  be  maintained  in  a  Circuit  Court  of  the  United  States  held 
in  the  State  of  New  York  by  an  administrator  of  the  deceased, 
appointed  in  that  State. 

Mr.  Justice  Miller,  in  delivering  judgment,  said :  "It  can 
scarcely  be  contended  that  the  act  belongs  to  the  class  of  criminal 
laws  which  can  only  be  enforced  by  the  courts  of  the  State  where 
the  offence  was  committed,  for  it  is,  though  a  statutory  remedy, 
a  civil  action  to  recover  damages  for  a  civil  injury.  It  is,  indeed, 
a  right  dependent  solely  on  the  statute  of  the  State ;  but  when  the 
act  is  done  for  which  the  law  says  the  person  shall  be  liable,  and 
the  action  by  which  the  remedy  is  to  be  enforced  is  a  personal  and 
not  a  real  action,  and  is  of  that  character  which  the  law  recog- 
nizes as  transitory  and  not  local,  we  cannot  see  why  the  defendant 
may  not  be  held  liable  in  any  court  to  whose  jurisdiction  he  can 
be  subjected  by  personal  process  or  by  voluntary  appearance,  as 


154  PRIVATE   INTERNATIONAL   LAW. 

was  the  case  here.  It  is  difficult  to  understand  how  the  nature  of 
the  remedy,  or  the  jurisdiction  of  the  courts  to  enforce  it,  is  in  any 
manner  dependent  on  the  question  whether  it  is  a  statutory  right 
or  a  common  law  right.  Wherever,  by  either  the  common  law  or 
the  statute  law  of  a  State,  a  right  of  action  has  become  fixed  and 
a  legal  liability  incurred,  that  liability  may  be  enforced  and  the 
right  of  action  pursued  in  any  court  which  has  jurisdiction  of  such 
matters  and  can  obtain  jurisdiction  of  the  parties."  103  U.  S. 
17,  18. 

That  decision  is  important  as  establishing  two  points:  1st. 
The  court  considered  "criminal  laws,"  that  is  to  say,  laws  punish- 
ing crimes,  as  constituting  the  whole  class  of  penal  laws  which 
cannot  be  enforced  extra-territorially.  2d.  A  statute  of  a  State, 
manifestly  intended  to  protect  life,  and  to  impose  a  new  and  ex- 
traordinary civil  liability  upon  those  causing  death,  by  subjecting 
them  to  a  private  action  for  the  pecuniary  damages  thereby  resut- 
ing  to  the  family  of  the  deceased,  might  be  enforced  in  a  Circuit 
Court  of  the  United  States  held  in  another  State,  without  regard 
to  the  question  whether  a  similar  liability  would  have  attached 
for  a  similar  cause  in  that  State.  The  decision  was  approved  and 
followed  at  the  last  term  in  Texas  &Pacih~c  Railway  v.  Cox,  145 
U.  S.  593,  605,  where  the  Chief  Justice,  speaking  for  the  whole 
court,  after  alluding  to  cases  recognizing  the  rule  where  the  laws 
of  both  jurisdictions  are  similar,  said :  "The  question,  however,  is 
one  of  general  law,  and  we  regard  it  as  settled  in  Dennick  v.  Rail- 
road Co." 

That  decision  has  been  also  followed  in  the  courts  of  several 
States.  Herrick  v.  Minneapolis  &  St.  Louis  Railway,  31  Minne- 
sota, 11;  Chicago  &c.  Railroad  v.  Doyle,  60  Mississippi,  977; 
Knight  v.  West  Jersey  Railroad,  108  Penn.  St.  250;  Morris  v. 
Chicago  &c.  Railway,  65  Iowa,  727;  Missouri  Pacific  Railway  v. 
Lczcis,  24  Nebraska,  848 ;  Higgins  v.  Central  Mew  England  Rail- 
road, 155  Mass.,  176. 

In  the  case  last  cited,  a  statute  of  Connecticut  having  pro- 
vided that  all  actions  for  injuries  to  the  person,  including  those 
resulting  instantaneously  or  otherwise  in  death,  should  survive ; 
and  that  for  an  injury  resulting  in  death  from  negligence  the  ex- 


PENAL    LAWS.  155 

ecutor  or  administrator  of  the  deceased  might  maintain  an  action 
to  recover  damages  not  exceeding  $5000,  to  be  distributed  among 
his  widow  and  heirs  in  certain  proportions ;  it  was  held  that  such 
an  action  was  not  a  penal  action,  and  might  be  maintained  under 
that  statute  in  Massachusetts  by  an  administrator,  appointed 
there,  of  a  citizen  thereof,  who  had  been  instantly  killed  in  Con- 
necticut by  the  negligence  of  a  railroad  corporation ;  and  the  gen- 
eral principles  applicable  to  the  case  were  carefully  stated  as  fol- 
lows :  "These  principles  require  that,  in  cases  of  other  than  penal 
actions,  the  foreign  law,  if  not  contrary  to  our  public  policy,  or 
to  abstract  justice  or  pure  morals,  or  calculated  to  injure  the  State 
or  its  citizens,  shall  be  recognized  and  enforced  here,  if  we  have 
jurisdiction  of  all  necessary  parties,  and  if  we  can  see  that,  con- 
sistently with  our  own  forms  of  procedure  and  law  of  trials,  we 
can  do  substantial  justice  between  the  parties.  If  the  foreign  law 
is  a  penal  statute,  or  if  it  offends  our  own  policy,  or  is  repugnant 
to  justice  or  to  good  morals,  or  is  calculated  to  injure  this  State 
or  its  citizens,  or  if  we  have  not  jurisdiction  of  parties  who  must 
be  brought  in  to  enable  us  to  give  a  satisfactory  remedy,  or  if 
under  our  forms  of  procedure  an  action  here  cannot  give  a  sub- 
stantial remedy,  we  are  at  liberty  to  decline  jurisdiction."  155 
Mass.  180. 

The  provision  of  the  statute  of  New  York,  now  in  question, 
making  the  officers  of  a  corporation,  who  sign  and  record  a  false 
certificate  of  the  amount  of  its  capital  stock,  liable  for  all  its  debts, 
is  in  no  sense  a  criminal  or  quasi  criminal  law.  The  statute,  while 
it  enables  persons  complying  with  its  provisions  to  do  business  as 
a  corporation,  without  being  subject  to  the  liability  of  general 
partners,  takes  pains  to  secure  and  maintain  a  proper  corporate 
fund  for  the  payment  of  the  corporate  debts.  With  this  aim,  it 
makes  the  stockholders  individually  liable  for  the  debts  of  the 
corporation  until  the  capital  stock  is  paid  in  and  a  certificate  of 
the  payment  made  by  the  officers ;  and  makes  the  officers  liable 
for  any  false  and  material  representation  in  that  certificate.  The 
individual  liability  of  the  stockholders  takes  the  place  of  a  cor- 
porate fund,  until  that  fund  has  been  duly  created ;  and  the  indi- 
vidual liability  of  the  officers  takes  the  place  of  the  fund,  in  case 


156  PRIVATE    INTERNATIONAL   LAW. 

their  statement  that  it  has  been  duly  created  is  false.  If  the  offi- 
cers do  not  truly  state  and  record  the  facts  which  exempt  them 
from  liability,  they  are  made  liable  directly  to  every  creditor  of 
the  company,  who  by  reason  of  their  wrongful  acts  has  not  the 
security,  for  the  payment  of  his  debt  out  of  the  corporate  prop- 
erty, on  which  he  had  a  right  to  rely.  As  the  statute  imposes  a 
burdensome  liability  on  the  officers  for  their  wrongful  act,  it  may 
well  be  considered  penal,  in  the  sense  that  it  should  be  strictly  con- 
strued. But  as  it  gives  a  civil  remedy,  at  the  private  suit  of  the 
creditor  only,  and  measured  by  the  amount  of  his  debt,  it  is  as  to 
him  clearly  remedial.  To  maintain  such  a  suit  is  not  to  adminis- 
ter a  punishment  imposed  upon  an  offender  against  the  State,  but 
simply  to  enforce  a  private  right  secured  under  its  laws  to  an  in- 
dividual. We  can  see  no  just  ground,  on  principle,  for  holding 
such  a  statute  to  be  a  penal  law,  in  the  sense  that  it  cannot  be  en- 
forced in  a  foreign  state  or  country. 

The  decisions  of  the  Court  of  Appeals  of  New  York,  so  far 
as  they  have  been  brought  to  our  notice,  fall  short  of  holding  that 
the  liability  imposed  upon  the  officers  of  the  corporation  bv  such 
statutes  is  a  punishment  or  penalty  which  cannot  be  enforced  in 
another  State. 

In  Garrison  v.  Howe,  the  court  held  that  the  statute  was  so 
far  penal  that  it  must  be  construed  strictly,  and  therefore  the 
officers  could  not  be  charged  with  a  debt  of  the  corporation,  which 
was  neither  contracted  nor  existing  during  a  default  in  making 
the  report  required  by  the  statute;  and  Chief  Justice  Denio,  in 
delivering  judgment,  said:  "If  the  statute  were  simply  a  reme- 
dial one,  it  might  be  said  that  the  plaintiff's  case  was  within  its 
equity;  for  the  general  object  of  the  law  doubtless  was,  beside 
enforcing  the  duty  of  making  reports  for  the  benefit  of  all  con- 
cerned, to  enable  parties  proposing  to  deal  with  the  corporation 
to  see  whether  they  could  safely  do  so."  "But  the  provision  is 
highly  penal,  and  the  rules  of  law  do  not  permit  us  to  extend  it 
by  construction  to  cases  not  fairly  within  the  language."  17  X. 
Y.  458,  465,  466. 

In  Jones  v.  Barlow,  it  was  accordingly  held  that  officers  were 
only  liable  for  debts  actually  due,  and  for  which  a  present  right 


PENAL    LAWS.  157 

of  action  exists  against  the  corporation ;  and  the  court  said :  "Al- 
though the  obligation  is  wholly  statutory,  and  adjudged  to  be  a 
penalty,  it  is  in  substance,  as  it  is  in  form,  a  remedy  for  the  collec- 
tion of  the  corporate  debts.  The  act  is  penal  as  against  the  de- 
faulting trustees,  but  is  remedial  in  favor  of  creditors.  The  lia- 
bility of  defaulting  trustees  is  measured  by  the  obligation  of  the 
company,  and  a  discharge  of  the  obligations  of  the  company,  or  a 
release  of  the  debt,  bars  the  action  against  the  trustees."  62  N.  Y. 
202,  205,  206. 

The  other  cases  in  that  court,  cited  in  the  opinion  of  the  Court 
of  Appeals  of  Maryland  in  the  present  case,  adjudged  only  the 
following  points :  Within  the  meaning  of  a  statute  of  limitations 
applicable  to  private  actions  only,  the  action  against  an  officer  is 
not  "upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture,"  which  would  be  barred  in  six  years,  but  is  barred  in. 
three  years  as  "an  action  upon  a  statute  for  a  penalty  or  forfeiture 
where  action  is  given  to  the  party  aggrieved,"  because  the  pro- 
visions in  question,  said  the  court,  "impose  a  penalty,  or  a  liability 
in  that  nature."  Merchants'  Bank  v.  Bliss,  35  N.  Y.  412,  417. 
A  count  against  a  person  as  an  officer  for  not  filing  a  report  can- 
not be  joined  with  one  against  him  as  a  stockholder  for  debts  con- 
tracted before  a  report  is  filed,  that  being  "an  action  on  contract." 
Wiles  v.  Suydam,  64  N.  Y.  173,  176.  The  action  against  an  offi- 
cer is  an  action  ex  delicto,  and  therefore  does  not  survive  against 
his  personal  representatives.     Stokes  v.  Stickney,  96  N.  Y.  323. 

In  a  later  case  than  any  of  these,  the  court,  in  affirming  the 
very  judgment  now  sued  on,  and  adjudging  the  statute  of  1875 
to  be  constitutional  and  valid,  said  that  "while  liability  within  the 
provision  in  question  is  in  some  sense  penal  in  its  character,  it 
may  have  been  intended  for  the  protection  of  creditors  of  corpora- 
tions created  pursuant  to  that  statute."  Huntington  v.  Attrill, 
118  N.  Y.  365,  378.  And  where  such  an  action  against  an  officer 
went  to  judgment  before  the  death  of  either  party,  it  was  decided 
that  "the  original  wrong  was  merged  in  the  judgment,  and  that 
thus  became  property  with  all  the  attributes  of  a  judgment  in  an 
action  ex  contractu;"  and  that  if,  after  a  reversal  of  judgment  for 
the    plaintiff,  both    parties    died,  the    plaintiff's    representatives 


158  PRIVATE  INTERNATIONAL  LAW. 

might  maintain  an  appeal  from  the  judgment  of  reversal,  and 
have  the  defendant's  representatives  summoned  in.  Carr  v. 
Rischer,  119  N.  Y.  117,  124. 

We  do  not  refer  to  these  decisions  as  evidence  in  this  case 
of  the  law  of  New  York,  because  in  the  courts  of  Maryland  that 
law  could  only  be  proved  as  a  fact,  and  was  hardly  open  to  proof 
on  the  demurrer,  and,  if  not  proved  in  those  courts,  could  not  be 
taken  judicial  notice  of  by  this  court  on  this  writ  of  error.  Han- 
ley  v.  Donoghue,  116  U.  S.  1 ;  Chicago  &  Alton  Railroad  v.  Wig- 
gins Ferry,  119  U.  S.  615;  Wernwag  v.  Pawling,  5  Gill  &  Johns. 
500,  508;  Coates  v.  Mackey,  56  Maryland,  416,  419.  Xor,  for 
reasons  to  be  stated  presently,  could  those  decisions,  in  any  view, 
be  regarded  as  concluding  the  courts  of  Maryland,  or  this  court, 
upon  the  question  whether  this  statute  is  a  penal  law  in  the  inter- 
national sense.  But  they  are  entitled  to  great  consideration,  be- 
cause made  by  a  court  of  high  authority,  construing  the  terms  of 
a  statute  with  which  it  was  peculiarly  familiar ;  and  it  is  satisfac- 
tory to  find  no  adjudication  of  that  court  inconsistent  with  the 
view  which  we  take  of  the  liability  in  question. 

That  court  and  some  others,  indeed,  have  held  that  the  lia- 
bility of  officers  under  such  a  statute  is  so  far  in  the  nature  of  a 
penalty,  that  the  creditors  of  the  corporation  have  no  vested  right 
therein,  which  cannot  be  taken  away  by  a  repeal  of  the  statute 
before  judgment  in  an  action  brought  thereon.  Victory  Co.  v. 
Beecher,  97  N.  Y.  651,  and  26  Hun,  48;  Union  Iron  Co.  v.  Pierce, 
4  Bissell,  327;  Breitung  v.  Lindauer,  37  Michigan,  217,  230; 
Gregory  v.  German  Bank,  3  Colorado,  332.  But  whether  that  is 
so,  or  whether,  within  the  decision  of  this  court  Hawthorne  v. 
Calef,  2  Wall.  10,  23,  such  a  repeal  so  affects  the  security  which 
the  creditor  had  when  his  debt  was  contracted,  as  to  impair  the 
obligation  of  his  contract  with  the  corporation,  is  aside  from  the 
question  now  before  us. 

It  is  true  that  the  courts  of  some  States,  including  Maryland, 
have  declined  to  enforce  a  similar  liability  imposed  by  the  statute 
of  another  State.  But,  in  each  of  those  cases,  it  appears  to  have 
been  assumed  to  be  a  sufficient  ground  for  that  conclusion,  that 
the  liability  was  not  founded  in  contract,  but  was  in  the  nature  of 


PENAL    LAWS.  159 

a  penalty  imposed  by  statute ;  and  no  reasons  were  given  for  con- 
sidering the  statute  a  penal  law  in  the  strict,  primary  and  inter- 
national sense.  Derrickson  v.  Smith,  3  Dutcher,  (27  N.  J.  Law), 
166;  Halsey  v.  McLean,  12  Allen,  438;  First  National  Bank  v. 
Price,  33  Maryland,  487. 

It  is  also  true  that  in  Steam  Engine  Co.  v.  Hubbard,  101  U. 
S.  188,  192,  Mr.  Justice  Clifford  referred  to  those  cases  by  way 
of  argument.  But  in  that  case,  as  well  as  in  Chase  v.  Curtis,  113 
L.  S.  452,  the  only  point  adjudged  was  that  such  statutes  were 
so  far  penal  that  they  must  be  construed  strictly;  and  in  both 
cases  jurisdiction  was  assumed  by  the  Circuit  Court  of  the  United 
States,  and  not  doubted  by  this  court,  which  could  hardly  have 
been  if  the  statute  had  been  deemed  penal  within  the  maxim  of 
international  law.  In  Flash  v.  Conn,  109  U.  S.  371,  the  liability 
sought  to  be  enforced  under  the  statute  of  New  York  was  the  lia- 
bility of  a  stockholder  arising  upon  contract ;  and  no  question  was 
presented  as  to  the  nature  of  the  liability  of  officers. 

But  in  Hornor  v.  Henning,  93  U.  S.  228,  this  court  declined 
to  consider  a  similar  liability  of  officers  of  a  corporation  in  the 
district  of  Columbia  as  a  penalty.  See  also  Neal  v.  Moultrie,  12 
Georgia,  104;  Cady  v.  Sanford,  53,  Vermont,  632,  639,  640;  Nick- 
erson  v.  Wheeler,  118  Mass.  295,  298;  Post  v.  Toledo  &c.  Rail- 
road, 144  Mass.  341,  345  ;  W oolverton  v.  Taylor,  132  Illinois,  197; 
Morawetz  on  Corporations  (2d  ed.)  §  908. 

The  case  of  Missouri  Pacific  Raihvay  v.  Humes,  115  U.  S. 
512,  on  which  the  defendant  much  relied,  related  only  to  *the  au- 
thority of  the  legislature  of  a  State  to  compel  railroad  corpora- 
tions, neglecting  to  provide  fences  and  cattle-guards  on  the  lines 
of  their  roads,  to  pay  double  damages  to  the  owners  of  cattle  in- 
jured by  reason  of  the  neglect ;  and  no  question  of  the  jurisdiction 
of  the  courts  of  another  State  to  maintain  an  action  for  such  dam- 
ages was  involved  in  the  case,  suggested  by  counsel,  or  in  the 
mind  of  the  court. 

The  true  limits  of  the  international  rule  are  well  stated  in  the 
decision  of  the  Judicial  Committee  of  the  Privy  Council  of  Eng- 
land, upon  an  appeal  from  Canada,  in  an  action  brought  by  the 
present  plaintiff  against  Attrill  in  the  Province  of  Ontario  upon 


160  PRIVATE  INTERNATIONAL   LAW. 

the  judgment  to  enforce  which  the  present  suit  was  brought. 
The  Canadian  judges,  having  in  evidence  before  them  some  of  the 
cases  in  the  Court  of  Appeals  of  New  York,  above  referred  to,  as 
well  as  the  testimony  of  a  well  known  lawyer  of  New  York  that 
such  statutes  were,  and  had  been  held  by  that  court  to  bt,  strictly 
penal  and  punitive,  differed  in  opinion  upon  the  question  whether 
the  statute  of  New  York  was  a  penal  law  which  could  not  be  en- 
forced in  another  country,  as  well  as  upon  the  question  whether 
the  view  taken  by  the  courts  of  New  York  should  be  conclusive 
upon  foreign  courts,  and  finally  gave  judgment  for  the  defendant. 
Huntington  v.  Attrill,  17  Ontario,  245,  and  18  Ontario  App.  136. 

In  the  Privy  Council,  Lord  Watson,  speaking  for  Lord  Chan- 
cellor Halsbury  and  other  judges,  as  well  as  for  himself,  delivered 
an  opinion  in  favor  of  reversing  the  judgment  below,  and  enter- 
ing a  decree  for  the  appellant,  upon  the  ground  that  the  action 
"was  not,  in  the  sense  of  international  law,  penal,  or,  in  other 
words,  an  action  on  behalf  of  the  government  or  community  of 
the  State  of  New  York  for  punishment  of  an  offence  against  their 
municipal  law."  The  fact  that  that  opinion  has  not  been  found 
in  any  series  of  reports  readily  accessible  in  this  country,  but  only 
in  8  Times  Law  Reports,  341,  affords  special  reasons  for  quot- 
ing some  passages. 

"The  rule"  of  international  law,  said  Lord  Watson,  "had  its 
foundation  in  the  well  recognized  principle  that  crimes,  including 
in  that  term  all  breaches  of  public  law  punishable  by  pecuniary 
mulct  or  otherwise,  at  the  instance  of  the  state  government,  or  of 
some  one  representing  the  public,  were  local  in  this  sense,  that 
they  were  only  cognizable  and  punishable  in  the  country  where 
they  were  committed.  Accordingly  no  proceeding,  even  in  the 
shape  of  a  civil  suit,  which  had  for  its  object  the  enforcement  by 
the  State,  whether  directly  or  indirectly,  of  punishment  imposed 
for  such  breaches  by  the  lex  loci,  ought  to  be  admitted  in  the 
courts  of  any  other  country.  In  its  ordinary  acceptation,  the 
word  'penal'  might  embrace  penalties  for  infractions  of  general 
law,  which  did  not  constitute  offences  against  the  State ;  it  might, 
for  many  legal  purposes,  be  applied  with  perfect  propriety  to 
penalties  created  by  contract;  and  it,  therefore,  when  taken  by 


PENAL    LAWS.  161 

itself,  failed  to  mark  that  distinction  between  civil  rights  and  crim- 
inal wrongs,  which  was  the  very  essense  of  the  international  rule." 

After  observing  that,  in  the  opinion  of  the  Judicial  Commit- 
tee, the  first  passage  above  quoted  from  Wisconsin  v.  Pelican 
Ins.  Co.,  127  U.  S.  265,  290,  "disclosed  the  proper  test  for  ascer- 
taining whether  an  action  was  penal  within  the  meaning  of  the 
rule,"  he  added:  "A  proceeding,  in  order  to  come  within  the 
scope  of  the  rule,  must  be  in  the  nature  of  a  suit  in  favor  of  the 
State  whose  law  had  been  infringed.  All  the  provisions  of  mu- 
nicipal statutes  for  the  regulation  of  trade  and  trading  companies 
were  presumably  enacted  in  the  interest  and  for  the  benefit  of  the 
community  at  large;  and  persons  who  violated  those  provisions 
were,  in  a  certain  sense,  offenders  against  the  state  law  as  well  as 
against  individuals  who  might  be  injured  by  their  misconduct. 
But  foreign  tribunals  did  not  regard  those  violations  of  statute 
law  as  offences  against  the  State,  unless  their  vindication  rested 
with  the  State  itself  or  with  the  Community  which  it  represented. 
Penalties  might  be  attached  to  them,  but  that  circumstance  would 
not  bring  them  within  the  rule,  except  in  cases  where  those  pen- 
alties were  recoverable  at  the  instance  of  the  State,  or  of  an  offi- 
cial duly  authorized  to  prosecute  on  its  behalf,  or  of  a  member  of 
the  public  in  the  character  of  a  common  informer.  An  action  by 
the  latter  was  regarded  as  an  actio  popularis  pursued,  not  in  his 
individual  interest,  but  in  the  interest  of  the  whole  community." 

He  had  already,  in  an  earlier  part  of  the  opinion,  observed : 
"Their  lordships  could  not  assent  to  the  proposition  that,  in  con- 
sidering whether  the  present  action  was  penal  in  such  sense  as  to 
oust  their  jurisdiction,  the  courts  of  Ontario  were  bound  to  pay 
absolute  deference  to  any  interpretation  which  might  have  been 
put  upon  the  statute  of  1875  in  the  State  of  New  York.  They 
had  to  construe  and  apply  an  international  rule,  which  was  a  mat- 
ter of  law  entirely  within  the  cognizance  of  the  foreign  court 
whose  jurisdiction  was  invoked.  Judicial  decisions  in  the  State 
where  the  cause  of  action  arose  were  not  precedents  which  must- 
be  followed,  although  the  reasoning  upon  which  they  were 
founded  must  always  receive  careful  consideration  and  might  be 
conclusive.     The  court  appealed  to  must  determine  for  itself,  in 


162  PRIVATE   INTERNATIONAL   LAW. 

the  first  place,  the  substance  of  the  right  nought  to  be  enforced, 
and,  in  the  second  place,  whether  its  enforcement  would,  either 
directly  or  indirectly,  involve  the  execution  of  the  penal  law  of 
another  State.  Were  any  other  principle  to  guide  its  decision,  a 
court  might  find  itself  in  the  position  of  giving  effect  in  one  case, 
and  denying  effect  in  another,  to  suits  of  the  same  character,  in 
consequence  of  the  causes  of  action  having  arisen  in  different 
countries ;  or  in  the  predicament  or  being  constrained  to  give  ef- 
fect to  laws  which  were,  in  its  own  judgment,  strictly  penal." 

In  this  view  that  the  question  is  not  one  of  local,  but  of  inter- 
national law,  we  fully  concur.  The  test  is  not  by  what  name  the 
statute  is  called  by  the  legislature  or  the  courts  of  the  State  in 
which  it  was  passed,  but  whether  it  appears  to  the  tribunal  which 
is  called  upon  to  enforce  it  to  be,  in  its  essential  character  and 
effect,  a  punishment  of  an  offence  against  the  public,  or  a  grant 
of  a  civil  right  to  a  private  person. 

In  this  country,  the  question  of  international  law  must  be  de 
termined  in  the  first  instance  by  the  court,  state  or  national,  in 
which  the  suit  is  brought.  If  the  suit  is  brought  in  a  Circuit 
Court  of  the  United  States,  it  is  one  of  those  questions  of  general 
jurisprudence  which  that  court  must  decide  for  itself,  uncon- 
trolled by  local  decisions.  Burgess  v.  Seligman,  107  U.  S.  20, 
33 ;  Texas  &  Pacific  Railway  v.  Cox,  145  U.  S.  593,  605,  above 
cited.  If  a  suit  on  the  original  liability  under  the  statute  of  one 
State  is  brought  in  a  court  of  another  State,  the  Constitution  and 
laws  of  the  United  States  have  not  authorized  its  decision  upon 
such  a  question  to  be  reviewed  by  this  court.  New  York  Ins.  Co. 
v.  Hendren,  92,  U.  S.  286;  Roth  v.  Ehman,  107  U.  S.  319.  But 
if  the  original  liability  has  passed  into  judgment  in  one  State,  the 
courts  of  another  State,  when  asked  to  enforce  it,  are  bound  by 
the  Constitution  and  laws  of  the  United  States  to  give  full  faith 
and  credit  to  that  judgment,  and  if  they  do  not,  their  decision,  as 
said  at  the  outset  of  this  opinion,  may  be  reviewed  and  reversed 
by  this  court  on  writ  of  error.  The  essential  nature  and  real 
foundation  of  a  cause  of  action,  indeed,  are  not  changed  by  re- 
covering judgment  upon  it.  This  was  directly  adjudged  in  Wis- 
consin v.  Pelican  Ins.  Co.,  above  cited.     The  difference  is  only  in 


PENAL    LAWS.  163 

the  appellate  jurisdiction  of  this  court  in  the  one  case  or  in  the 
other. 

If  a  suit  to  enforce  a  judgment  rendered  in  one  State,  and 
which  has  not  changed  the  essential  nature  of  the  liability,  is 
brought  in  the  courts  of  another  State,  this  court,  in  order  to  de- 
termine, on  writ  of  error,  whether  the  highest  court  of  the  latter 
State  has  given  full  faith  and  credit  to  the  judgment,  must  deter- 
mine for  itself  whether  the  original  cause  of  action  is  penal  in  the 
international  sense.  The  case,  in  this  regard,  is  analogous  to  one 
arising  under  the  clause  of  the  Constitution  which  forbids  a  State 
to  pass  any  law  impairing  the  obligation  of  contracts,  in  which,  if 
the  highest  court  of  a  State  decides  nothing  but  the  original  con- 
struction and  obligation  of  a  contract,  this  court  has  no  jurisdic- 
tion to  review  its  decision ;  but  if  the  state  court  gives  effect  to  a 
subsequent  law,  which  is  impugned  as  impairing  the  obligation  of 
a  contract,  this  court  has  power,  in  order  to  determine  whether 
any  contract  has  been  impaired,  to  decide  for  itself  what  the  true 
construction  of  the  contract  is.  New  Orleans  Waterworks  v. 
Louisiana  Sugar  Co.,  125  U.  S.  18,  38.  So  if  the  state  court,  in 
an  action  to  enforce  the  original  liability  under  the  law  of  another 
State,  passes  upon  the  nature  of  that  liability  and  nothing  else, 
this  court  cannot  review  its  decision ;  but  if  the  state  court  declines 
to  give  full  faith  and  credit  to  a  judgment  of  another  State,  be- 
cause of  its  opinion  as  to  the  nature  of  the  cause  of  action  on 
which  the  judgment  was  recovered,  this  court,  in  determining 
whether  full  faith  and  credit  have  been  given  to  that  judgment, 
must  decide  for  itself  the  nature  of  the  original  liability. 

Whether  the  Court  of  Appeals  of  Maryland  gave  full  faith 
and  credit  to  the  judgment  recovered  by  this  plaintiff  in  New 
York  depends  upon  the  true  construction  of  the  provisions  of  the 
Constitution  and  of  the  act  of  Congress  upon  that  subject. 

The  provision  of  the  Constitution  is  as  follows :  "Full  faith 
and  credit  shall  be  given  in  each  State  to  the  public  acts,  records 
and  judicial  proceedings  of  every  other  State.  And  the  Congress 
may  by  general  laws  prescribe  ^  the  manner  in  which  such  acts, 
records  and  proceedings  shall  be  proved,  and  the  effect  thereof." 
Art.  4,  sect.  1. 


164  PRIVATE    INTERNATIONAL  LAW. 

This  clause  of  the  Constitution,  like  the  less  perfect  provision 
on  the  subject  in  the  Articles  of  Confederation,  as  observed  by 
Mr.  Justice  Story,  "was  intended  to  give  the  same  conclusive  ef- 
fect to  judgments  of  all  the  States,  so  as  to  promote  uniformity, 
as  well  as  certainty,  in  the  rule  among  them ;"  and  had  three  dis  • 
tinct  objects:  first,  to  declare,  and  by  its  own  force  establish,  that 
full  faith  and  credit  should  be  given  to  the  judgments  of  every 
other  State ;  second,  to  authorize  Congress  to  prescribe  the  man- 
ner of  authenticating  them;  and  third,  to  authorize  Congress  t:> 
prescribe  their  effect  when  so  authenticated.  Story  on  the  Con 
stitution,  §§  1307,  1308. 

Congress,  in  the  exercise  of  the  power  so  conferred,  besides 
prescribing  the  manner  in  which  the  records  and  judicial  proceed- 
ings of  any  State  may  be  authenticated,  has  defined  the  effect 
thereof,  by  enacting  that  "the  said  records  and  judicial  proceed- 
ings, so  authenticated,  shall  have  such  faith  and  credit  given  co 
them  in  every  court  within  the  United  States,  as  they  have  by  law 
or  usage  in  the  courts  of  the  State  from  which  they  are  taken." 
Rev.  Stat.  §  905,  re-enacting  Act  of  May  26,  1790,  c.  11,  1  Sta*. 
122. 

These  provisions  of  the  Constitution  and  laws  of  the  United 
States  are  necessarily  to  be  read  in  the  light  of  some  established 
principles,  which  they  were  not  intended  to  overthrow.  They  give 
no  effect  to  judgments  of  a  court  which  had  no  jurisdiction  of 
the  subject-matter  or  of  the  parties.  D'Arcy  v.  Ketchum,  11 
How.  165;  Thompson  v.  Whitman,  18  Wall.  457.  And  they  con- 
fer no  new  jurisdiction  on  the  courts  of  any  State ;  and  therefore 
do  not  authorize  them  to  take  jurisdiction  of  a  suit  or  prosecution 
of  such  a  penal  nature,  that  it  cannot,  on  settled  rules  of  public 
and  international  law,  be  entertained  by  the  judiciary  of  any  other 
State  than  that  in  which  the  penalty  was  incurred.  Wisconsin  v. 
Pelican  Ins.  Co.,  above  cited. 

Nor  do  these  provisions  put  the  judgments  of  other  States 
upon  the  footing  of  domestic  judgments,  to  be  enforced  by  execu- 
tion ;  but  they  leave  the  manner  in  which  they  may  be  enforced  to 
the  law  of  the  State  in  which  they  are  sued  on,  pleaded,  or  offered 
in  evidence.     McElmoyle  v.  Cohen,  13  Pet.  312,  325.     But  when 


STATUS  OF   MARRIAGE.  165 

duly  pleaded  and  proved  in  a  court  of  that  State,  they  have  the 
effect  of  being  not  merely  prima  facie  evidence,  but  conclusive 
proof,  of  the  rights  thereby  adjudicated;  and  a  refusal  to  give 
them  the  force  and  effect,  in  this  respect,  which  they  had  in  the 
State  in  which  they  were  rendered,  denies  to  the  party  a  right  se- 
cured to  him  by  the  Constitution  and  laws  of  the  United  States. 
Christmas  v.  Russell,  5  Wall.  290;  Green  v.  Van  Buskirk,  5  Wall. 
307,  and  7  Wall.  139;  Insurance  Co.  v.  Harris,  97  U.  S.  331,  336; 
Crescent  City  Co.  v.  Butchers'  Union,  120  U.  S.  141,  146,  147; 
Carpenter  v.  Strange,  141  U.  S.  87. 

The  judgment  rendered  by  a  court  of  the  State  of  New  York, 
now  in  question,  is  not  impugned  for  any  want  of  jurisdiction  ii. 
that  court.  The  statute  under  which  that  judgment  was  recov- 
ered was  not,  for  tne  reasons  already  stated  at  length,  a  penal  law 
in  the  international  sense.  The  faith  and  credit,  force  and  effect, 
which  that  judgment  had  by  law  and  usage  in  New  York  was  to 
be  conclusive  evidence  of  a  direct  civil  liability  from  the  individ- 
ual defendant  to  the  individual  plaintiff  for  a  certain  sum  of 
money,  and  a  debt  of  record,  on  which  an  action  would  lie,  as  on 
any  other  civil  judgment  inter  partes.  The  Court  of  Appeals  ot 
Maryland,  therefore,  in  deciding  this  case  against  the  plaintiff, 
upon  the  ground  that  the  judgment  was  not  one  which  it  was 
bound  in  any  manner  to  enforce,  denied  to  the  judgment  the  full 
faith,  credit  and  effect  to  which  it  was  entitled  under  the  Consti- 
tution and  laws  of  the  United  States. 

Judgment  reversed,  and  case  remanded  to  the  Court  of  Ap- 
peals of  the  State  of  Maryland  for  further  proceedings  not 
inconsistent  with  the  opinion  of  this  court. 


STATUS  OP  MARRIAGE. 
VAN  VOORHIS  v.  BRINTNALL,  86  N.  Y.  18,  (1881). 
Danforth,  J.  By  this  action  the  plaintiffs  seek  a  construc- 
tion of  the  will  of  Elias  W.  Van  Voorhis  deceased,  and  an  adjudi- 
cation as  to  the  right  under  it  of  the  defendant,  Rose  Van  Voor- 
his. The  questions  turn  upon  these  facts :  The  testator  died  in 
1869,  leaving  a   widow   and   three   children,    Elias,    Sarah   and 


166  PRIVATE   INTERNATIONAL  LAW. 

Barker.     The  widow  and  Elias  were  appointed  executors.     B\ 
the  will  a  specific  devise  was  made  to  his  wife,  and  the  residue  of 
the  estate  given  to  the  executors  in  trust,  "so  long  as  his  wife 
should  live,"  for  the  accumulation  of  income  and  payment  by  them 
as  therein  directed.     By  its  second  clause  two-ninths  part  of  this 
income  was  to  be  paid  for  the  benefit  of  Barker,  as  follows :   Four 
hundred  dollars  annually  for  the  support  of  Ella  Van  Voorhis,  and 
the  same  amount  for  the  support  of  Elias  William  Van  Voorhis, 
children  of  Barker,  until  they  should  respectively  reach  the  age 
of  twenty-one  years,  the  remainder  of  said  two-ninths  to  Barker. 
Before  the  commencement  of  this  action  Ella  reached  the  age  of 
twenty-one  years.     The  sixth  clause  of  the  will  provided  thdt 
upon  the  death  of  the  testator's  wife  all  his  property  should  be 
divided  equally    between  his  children    above-named,  share    and 
share  alike,  and  the  issue  of  any  deceased  child  should  take  the 
share  his,  her  or  their   parent  would   have  taken  if   then  living. 
Elizabeth  was  then  the  wife  of  Barker  and  mother  of  Ella  and 
Elias,  his  children.     Afterward,  and  on  the  19th  of  April,  1872, 
in  consequence  of  proceedings  begun  by  her,  the  Supreme  Court 
of  this  State  dissolved  the  marriage  of  Elizabeth  and  Barker,  on 
the  ground  of  his  adultery,  and  also  adjudged  that  it  should  not 
be  lawful  for  him  to  marry  again  until  her  dearh.     That  event 
has  not  happened,  but  on  the  10th  of  June,  1874,  he  married  Idj. 
L.  Baron  Schroeder  at  the  city  of   New  Haven,  in   the  State  of 
Connecticut.     Both  parties   then   resided  in  this    State,  and   the 
trial  court  found  as  a  fact  "that  they  went  to  New  Haven  for  the 
purpose  of  evading  the  New  York  law,  for  the  reason  that  the 
said  Barker  Van  Voorhis  was  prohibited  from  marrying  again  in 
this  State."     On  the  same  day  they  returned  to  New  York  and 
continued  to  reside  there  until  the  death  of  Barker  in  1880.     De- 
fendant Rose  Van  Voorhis  was  a  child  of  that  marriage,  born  in 
this  State  April  2,  1875.     The  trial  court  also  found  that  the  mar- 
riage was  valid  under  the  laws  of  Connecticut,  but,  from  the  facts 
above  stated,  that  it  was  unll  and  void  by  the  laws  of  this  State. 
Rose,  therefore,  was  adjudged  illegitimate  and  not  entitled  to  take 
under  the  will.     It  was  also  declared  that  the  two-ninths  of  the 
income  appropriated  for  the  benefit  of  Barker  (after  deducting 


STATUS   OF   MARRIAGE.  167 

$400  annually  during  the  minority  of  Elias)  were  undisposed  of 
and  went  by  force  of  the  statute  of  distributions  to  Elizabeth,  his 
former  wife,  and  her  children.  The  plaintiffs,  and  Rose  Van 
Voorhis  and  Sarah  Brintnall,  defendants,  appealed  to  the  General 
Term  of  the  Supreme  Court,  where  the  judgment  was  affirmed. 
They  now  appeal  to  this  court. 

The  plaintiffs  and  the  defendant  Sarah  Brintnall  object  to  so 
much  of  the  judgment  as  disposes  of  the  income  set  apart  by  the 
second  clause  of  the  will.  They  insist  that  Elizabeth,  the  former 
wife  of  Barker,  has  no  concern  with  it.  On  the  contrary,  they 
say  it  should  go  to  the  testator's  son  Elias,  and  Sarah,  his  daugh- 
ter, each  taking  one-third,  and  the  remaining  third  to  the  children 
of  Barker.  This  question  was  not  presented  by  the  complaint  as 
one  concerning  which  the  executors  had  anv  doubt,  and  they  now 
claim  that  it  was  by  inadvertence  passed  upon  by  the  trial  court. 
It  would  seem,  therefore,  that  the  attention  of  that  court  should 
have  been  called  to  it  in  some  other  way  than  by  exception  and 
appeal.  As  the  case  stands  there  is  such  a  defect  of  parties  as 
would  make  unavailing  our  decision  if  it  should  accord  with  the 
plaintiff's  views.  Elizabeth,  the  mother,  is  not  before  us  and 
would  yet  have  a  right  to  be  heard.  Whether  one  released  with- 
out fault  on  her  part  from  the  obligations  of  marriage  may,  upon 
the  death  of  her  former  husband,  have  a  share  of  his  personal  es- 
tate, and  if  so,  whether  it  is  to  be  measured  by  its  condition  at  the 
time  of  the  divorce  or  at  his  death,  should  not  be  determined  in 
her  absence.  Our  conclusion,  however,  upon  the  remaining  ques- 
tion will  lead  to  a  new  trial ;  and  in  the  meantime  such  steps  can 
be  taken  as  the  parties  think  fit  to  complete  the  record. 

That  question  involves  the  civil  status  acquired  by  Barker 
Van  Voorhis  and  Ida  by  the  marriage  in  Connecticut.  First,  it  is 
a  general  rule  of  law  that  a  contract  entered  into  in  another  State 
or  country,  if  valid  according  to  the  law  of  that  place,  is  valid 
everywhere  (The  King  of  Spain  v.  Machado,  4  Russ.  225;  Potter 
v.  Brozvn,  5  East,  130;  Story's  Conflict  of  Laws,  §  242)  ;  and  this, 
says  Kent  (2  Com.  454),  "is  jure  gentium,  and  by  tacit  assent," 
and  Lord  Brougham  in  Warrender  v.  Warrender  (2  CI.  &  Fin. 
529,  530),  declares   that   the    courts  of   the  country    where    the 


168  PRIVATE   INTERNATIONAL   LAW. 

question  arises,  resort  to  the  law  of  the  country  where  the  con- 
tract was  made,  not  ex  comitati,  but  ex  debito  justitiae.  And 
coming  to  the  case  in  hand,  the  rule  recognizes  as  valid  a  marriage 
considered  valid  in  the  place  where  celebrated.  ( Story' s  Conflict 
of  Laws,  §§  69,  79;  Connelly  v.  Connelly,  2  Eng.  L.  &  Eq.  570.) 
"We  all  know,"  say  the  court  in  that  case,  "that  in  questions  of 
marriage  contract,  the  lex  loci  contractus  is  that  which  is  to  dt- 
termine  the  status  of  the  parties,"  and  also  declare  that  this  by 
consent  of  all  nations  is  jus  gentium.  In  D airy m pie  v.  Dalrymple 
(2  Hagg.  Const.  54),  it  was  held  that  a  marriage  good  in  Scoc- 
land  though  otherwise  by  the  law  of  England,  is  valid  in  that 
country ;  and  this  was  put  upon  the  ground  that  the  rights  of  the 
parties  must  be  tried  by  reference  to  the  law  of  the  country  where 
they  originated.  In  Scrimshire  v.  Scrimshire  (2  Hagg.  Const. 
395),  the  same  principle  is  stated  in  different  words.  The  couit 
say,  "All  parties  contracting  gain  a  forum  in  the  place  where  the 
contract  is  entered  into."  (Warrender  v.  Warrender,  suprj; 
Lacon  v.  Higgiris,  1  Dow.  &  Ry.  38 ;  Butler  v.  Freeman,  1  Amb. 
303.)  Not  only  is  this  the  result  of  English  decisions,  but  is  be- 
lieved to  state  the  principle  upon  which  the  courts  of  many  of  our 
sister  States  have  acted  {Greenwood  v.  Curtis,  6  Mass.  358 ;  Med  - 
way  v.  Needham,  16  id.  157;  Parton  v.  Hervey,  1  Gray,  119;  Put- 
nam, v.  Putnam,  8  Pick.  433;  Dickson  v.  Dickson,  1  Yerg.  no; 
Stevenson  v.  Gray,  17  B.  Monr.  193;  Fornshill  v.  Murray,  1 
Bland.  Ch.  479)  ;  and  by  which  our  own,  with  few  exceptions, 
have  been  governed.  In  Decouche  v.  Savetier  (3  Johns.  Ch. 
210),  Chancellor  Kent  says:  "There  is  no  doubt  of  the  general 
principle  that  the  rights  dependent  upon  nuptial  contracts  are  to 
be  determined  by  the  lex  loci."  In  Cropsey  v.  Ogden  (n  N.  Y. 
228),  Johnson,  J.  says  (p.  236)  :  "By  the  universal  practice  of 
civilized  nations  the  permission  or  prohibition  of  particular  mar 
riages  of  right  belongs  to  the  country  where  the  marriage  is  to  be 
celebrated."  The  court  had  before  it  the  case  of  one  who,  hav- 
ing a  former  wife  living,  from  whom  he  then  had  been  divorced 
for  adultery  by  him  committed,  married  a  second  time  in  this 
State.  His  last  marriage  was  held  to  be  void  under  our  statute 
prohibiting  a  second  or  other  subsequent  marriage  of  any  person 


STATUS   OF   MARRIAGE.  169 

"during  the  life-time  of  any  former  husband  or  wife  of  such  per- 
son." There  the  former  marriage,  his  adultery,  and  the  existence 
of  his  first  wife  established  the  condition  or  quality  of  the  man. 
They  were  facts  in  his  history,  and  brought  him  within  the  terms 
of  our  law.  The  general  rule  above  stated  was  applied.  The 
lex  loci  governed.  But  the  court  said  it  was  not  necessary  for 
them  to  consider  what  would  have  been  the  effect  of  a  marriage 
celebrated  out  of  this  State.  Its  attention  was,  however,  directly 
brought  to  the  statute  relating  to  marriages,  and  the  circum- 
stances under  which  the  remarks  above  quoted,  and  others  seem- 
ing to  discriminate  between  a  marriage  in  this  State  and  out  of  it, 
were  made,  render  them  the  more  significant.  In  Haviland  v. 
Halstead  (34  N.  Y.  643),  a  person  divorced  for  the  same  offense 
in  this  State  promised  in  New  Jersey  to  marry  the  plaintiff.  He 
married  another,  and  an  action  for  the  breach  of  this  promise  was 
brought  here  and  failed.  The  parties  resided  in  this  State  and 
contemplated  the  performance  of  the  contract  here.  The  court 
carefully  distinguish  the  case  so  presented  from  one  where  a  mar- 
riage had  taken  place  in  a  foreign  State.  They  assume  that  the 
latter  would  be  treated  as  valid,  although  the  parties  had  gone 
there  with  intent  to  evade  the  laws  of  this  State,  and  citing  Med- 
ic ay  v.  Xecdham  (supra),  say,  the  doctrine  "in  favor  of  marriage 
so  contracted  is  founded  on  principles  of  policy  to  prevent  the 
great  inconvenience  and  cruelty  of  bastardizing  the  issue  of  such 
marriages,  and  to  avoid  the  public  mischief  which  would  result 
lrom  the  loose  state  in  which  people  so  situated  would  live."  In- 
deed the  general  doctrine  is  so  well  settled  by  the  decisions  of  all 
courts  and  the  reiteration  of  text  writers  as  to  become  a  maxim 
in  the  law,  that  one  rule  in  these  cases  should  be  followed  by  all 
countries ;  that  is,  the  law  of  the  country  where  the  contract  «« 
made.  (Story,  supra,  84;  2  Kent's  Com.  Qi-92.)  There  are  nj 
doubt  exceptions  to  this  rule;  cases,  first  of  incest  or  polygam/ 
coming  within  the  prohibitions  of  natural  law  (Wightman  v. 
Wightman,  4  Johns.  Ch.  343:  Hutcliins  v.  Kinunell  (31  Mich. 
133:  Story,  supra,  §  113  a  [7th  ed.])  ;  second,  of  prohibition  by 
positive  law.  It  is  contended  by  the  learned  counsel  for  the  re- 
spondent that  the  judgment  may  be  upheld  upon  the  ground  that 


170  PRIVATE    INTERNATIONAL  LAW. 

the  marriage  is  one  of  the  latter  class.  The  assertion,  however, 
is  left  unsupported  by  argument  or  the  citation  of  authorities.  Its 
truth  is  not  so  self  evident  as  to  dispense  with  either,  and  tha 
omission,  coupled  with  our  own  examination,  leads  us  to  think 
that  the  courts  have  not  yet  spoken  with  a  controlling  voice  in  its 
favor.  It  is  to  be  maintained  if  at  all  upon  the  prohibition  in  th* 
judgment  of  divorce  already  referred  to  and  the  provisions  of  the 
statute  which  made  the  judgment  proper.  (Graves  v.  Graves,  2 
Paige,  62).  The  question  is  not  one  of  ethics  or  morality,  but 
the  extent  of  the  authority  of  the  statute  as  a  rule  of  conduct.  As 
a  direct  inquiry  it  is  here  for  the  first  time.  There  are  dicta  and 
expressions  having  relation  to  it  in  Cropsey  v.  Ogden,  and  Havi- 
land  v.  Halstead  (supra),  tending  to  confine  the  effect  of  the 
statutory  prohibition  and  declaration  of  invalidity  to  second  mar- 
riages within  this  State ;  but  in  neither  case  was  the  precise  ques- 
tion before  the  court  for  judgment.  In  other  courts  of  this  State 
it  has  met  with  differing  answers.  In  the  Supreme  Court,  first 
department,  Marshall  v.  Marshall  (2  Hun,  238),  by  a  divided 
court,  and  Thorpe  v.  Thorpe  (Superior  Court  of  New  York  city), 
following  it,  a  marriage  under  similar  circumstances  was  held 
void.  The  judgment  now  before  us  went  upon  the  principal  of 
stare  decisis,  the  court  below  also  following  Marshall  v.  Marshall 
(supra)  ;  Kerrison  v.  Kerrison,  Special  Term,  fourth  department 
(8  Abb.  N.  C.  444),  and  Matter  of  Webb  (1  Tucker,  372,  [Surr. 
Ct.])  are  to  the  contrary.  To  the  latter  class  may  be  added 
Pons  ford  v.  Johnson,  before  Nelson  and  Betts,  J.  J.  (2  Blatch?. 
51).  These  decisions  are  irreconcilable,  and  any  determinatioi 
reached  by  us  must  overrule  one  class  or  the  other.  We  are 
therefore  at  liberty  to  treat  the  subject  as  res  integra,  unaffected 
by  any  paramount  authority,  although  greatly  assisted  by  the  rea- 
soning of  the  learned  judges  who  have  taken  part  in  those  judg- 
ments. 

The  statutory  provisions  relied  upon  by  the  respondent  are 
found  in  part  2,  chap.  8  of  the  R.  S.,  entitled  "Of  the  domestic  re- 
lations," and  especially  in  those  articles  which  treat  "of  husband 
and  wife."  (Tit.  1,  arts.  1  to  5,  vol.  2,  p.  138.)  The  statute  does 
not  define  marriage  or  introduce  a  new  formula  for  the  relation, 


STATUS  OF   MARRIAGE.  171 

but  treats  it  as  existing,  and  declares  it  shall  continue  "in  this 
State"  a  civil  contract  (§i,  chap.  8,  tit.  i,  art.  i,  part  2),  adopts 
the  principles  of  the  common  law  which  renders  invalid  marriages 
between  persons  connected  by  certain  lines  of  consanguinity  (§  3, 
id.),  or  who  for  want  of  age  or  understanding  are  incapable  of 
consent,  or  who  if  capable  have  been  induced  to  give  it  by  fraud 
or  force.  (§4,  id.)  It  then  declares  that  no  second  marriage 
shall  be  contracted  by  any  person  during  the  life-time  of  any  for- 
mer husband  or  wife  of  such  person,  unless  the  marriage  with 
such  former  husband  or  wife  shall  have  been  dissolved  for  some 
cause  other  than  the  adultery  of  such  person,  and  that  every  mar 
riage  contracted  contrary  to  this  provision  shall  be  absolutely 
void.  (§5,  id.)  These  circumstances  are  restated  as  grounds 
of  divorce,  and  it  is  enacted  that  "whenever  a  marriage  shall  be 
dissolved  pursuant  to  the  provisions  of  this  article,  the  complain  • 
ant  may  marry  again  during  the  life-time  of  the  defendant,  bu_ 
110  defendant  convicted  of  adultery  shall  marry  again  until  the 
death  of  the  complainant."  (§  49,  id.,  art.  3.)  As  originally 
enacted  the  same  statute  (Tit  1,  supra,  §  2),  not  only  made  the 
consent  of  parties  essential,  but  limited  the  class  to  those  "capable 
in  law  of  contracting,"  and  by  its  definition  excluded  males  under 
seventeen  and  females  under  fourteen  years  of  age.  Although 
this  provision  has  been  repealed,  it  throws  some  light  upon  the 
legislative  intent  in  devising  the  system  of  laws  concerning  hus- 
band and  wife.  Conditions  were  annexed  not  only  to  the  dura- 
tion, but  the  creation  of  this  relation,  and  the  frequency  with 
which  it  might  be  formed.  Certain  persons  are  declared  capable, 
others  incapable  of  forming  it,  and  still  others  must  submit  to  its 
dissolution.  In  one  instance,  as  in  the  case  before  us,  it  cannot 
be  contracted  with  another  while  the  fir^t  co-contractor  is  living. 
It  is  obvious  that  this  last  condition  Is  in  the  nature  of  a  penalty. 
{Wait  v.  Wait,  4  N.  Y.  101 ;  Com.  v.  Lure,  113  Mass.  471.)  It 
forms  no  part  of  the  relief  sought  by  tSe  injured  party,  has  no 
tendency  toward  compensation,  nor  is  it  imposed  to  that  end.  It 
is  restraint  or  puisnhment.  (West  Cambridge  v.  Lexington,  1 
Pick.  506-508;  Clark  v.  Clark,  8  Cush.  386.)  The  fact  of  adul- 
tery is  in  the  language   of  the  statute  an   "offense,"  the   person 


172  PRIVATE   INTERNATIONAL  LAW. 

committing  it  "a  guilty  person ;"  and  wLtn  established  by  judg- 
ment he  is  said  to  be  "convicted."  He  is,  in  consequence  of  it, 
deprived  of  a  natural  right  of  privilege  which  others  enjoy. 
Moreover  for  violating  this  statutory  pru/ision  he  is  at  least  ren- 
dered liable  to  fine  and  imprisonment,  as  for  a  misdemeanor  ( i 
R.  S.,  part  4,  chap,  i,  tit.  6,  p.  696,  §§  39,  40)  ;  if  not  for  felony 
under  the  provisions  of  article  2  of  the  same  statute.  (2  R.  S. 
687.)  The  opinion  of  Walworth,  Chancellor,  went  to  that  ex- 
tent in  Graves  v.  Graves  (2  Paige,  62)  ;  and  although  People  v. 
Hovey  (5  Barb.  121)  is  to  the  contrary,,  the  measure  of  the  offense 
is  not  now  important,  and  the  last  case  holds  to  the  misdemeanor. 
To  that  extent  the  law  is  plain.  Tue  real  question  is  whether 
such  a  statute  furnishes  an  exception  to  the  maxim  "Leges  extra 
territoriuw.  non  obligant."  It  is  not  necessary  to  assert  that  the 
power  of  the  legislature  is  so  limited  that  no  law  passed  by  it 
would  accompany  a  citizen  into  other  countries  and  there  control 
or  modify  the  legal  effect  of  his  actions.  Nor  need  we  deny  that 
it  might  be  so  framed  as  to  affect  his  person  and  subject  him  in 
this  State  to  punishment  for  its  violation  elsewhere,  upon  his  re- 
turn to  the  jurisdiction  of  our  courts.  On  the  contrary,  it  is  to 
be  regarded  as  settled  law  that  as  all  persons  within  its  borders, 
whether  citizens  or  aliens,  are  liable  to  be  punished  for  any  offense 
committed  in  this  State  against  its  laws,  its  citizens  may  also  be 
punished  for  acts  committed  beyond  its  borders  where  there  is  a 
special  provision  of  law  declaring  the  act  to  be  an  offense,  al- 
though committed  out  of  the  State.  ( Maxwell  on  Statutes,  1 19- 
128,  Lope  v.  Doherty,  2  De  G.  &  J.  624;  1  Burge's  Col.  &  For. 
Laws  196.)  So,  also,  may  an  act  committed  out  of  the  State  be 
made  to  affect  an  individual,  whether  citizen  or  foreigner,  when 
he  comes  within  its  borders  and  does  some  other  act  of  which  our 
laws  take  notice.  Nor  are  examples  of  legislation  effecting  these 
results  wanting.  The  statute  defining  acts  which  constitute  trea- 
son (Tit.  1,  pt.  4,  ch.  1,  p.  657,  vol.  2  R.  S.,  §  2)  illustrates  the 
first :  It  subjects  the  offender  to  punishment,  whether  the  act  pro- 
hibited is  don^  '"in  this  State  or  elsewhere."  That  against  duel- 
ing is  an  example  of  the  second :  It  makes  one  who  by  previous 
engagement  fights  a  duel  without  the  jurisdiction  of  this  State, 


STATUS  OF   MARRIAGE.  173 

and  in  so  doing  inflicts  a  wound  upon  any  person,  "whereof  he 
shall  die  within  this  State,"  and    every  second  engaged    in  such 
duel,  guilty  of  murder  within  this  State.     And  still  more  in  point, 
as  illustrating  its  manner  of  expression  where  the  legislature  in- 
tends to  take  cognizance  of  an  act  committed  outside  the  limits  of 
the  State,  or  to  impress  upon  the  status  of  its  citizen  a  condition 
of  liability  for  such  an  act,  are  the  provisions  of  the  statute  treat- 
ing of  offenses   against  "the    public  peace   and  public   morals." 
(Tit.  5,  pt.  4,  ch.  i,  art.  I,  vol.  2,  R.  S.)     After  providing  punish- 
ments for  fighting  duels,  sending  challenges,  etc.,  in  the  most 
general  terms,  excluding  no  one  from  its  condemnation,  but,  with- 
in the  general  maxim  above  quoted,  having  no  extra-territori  il 
force,  comes  a  provision  which  by  its  special  language  attaches  to 
the  citizen,  goes  with  him  as  he  crosses  the  line  of  his  State,  and 
binds  him  with  an  obligation  in  what  place  soever  he  is.     "If,"  it 
sa)'s  (§  5>  id.),  "any  inhabitant  of  this  State  shall  leave  the  same 
tor  the  purpose  of  eluding  the  operation"  of  these  provisions,  and 
"shall  give  or  receive  any  such  challenge"    *     *     *    without  this 
State,  he  shall  be  deemed  guilty  and  subject  to  the  like  punish- 
ment as  if  the  offense  had  been  committed  within  this  State.    And 
we  shall  see  later  a  provision  similar  to  this,  now  forming  part  of 
the  law  relating  to  marriage--  in  the  State  of  A^assachusetts.     An- 
other instance  well  shows  by  contrast  the  necessity  of  a  declara- 
tion that  the  arm  of  the  law  shall  be  so  extended.     In  proximity 
to  the  provisions  I  have  quoted,  in  the  next  article  (§8)  is  the 
statute  "of  unlawful  marriages,"  defining  bigamy  and  declaring 
its  punishment ;  saying  in  general  terms,  "every  person  having  a 
husband  or  wife  living  who  shall  marry  any  other  person"  (with 
exceptions  of  no  moment  here)  shall  be  adjudged  guilty  of  big- 
amy, providing  (§  io)  that  "an  indictment  may  be  found  against 
any  person  for  a  second,  third  or  other  marriage  herein  prohib  • 
ited,  in  the  county  in  which  he  shall  be  apprehended,  and  the  same 
proceedings  had  thereon  'as  if  the  offense  had  been  committed 
therein  '  "     Yet  there  are  no  enlarging  words  affixing  themselves 
to  the  person  of  the   citizen  as   in  the  statute   before  quoted,  or 
bringing  within  its  purview  "a  second  or  other  marriage"  con- 
tracted out  of  the  State.    And,  therefore,  on  the  trial  of  one  who 


174  PRIVATE   INTERNATIONAL  LAW. 

was  indicted  for  bigamy,  the  second  marriage  having  taken  place 
in  Canada,  it  was  held,  as  early  as  1855,  by  a  court  presided  over 
by  the  late  judge  W.  F.  Allen,  then  a  justice  of  the  Supreme 
Court,  that  this  statute  had  no  application,  that  the  second  mar- 
riage was  not  an  offense  against  the  laws  of  this  State,  because 
they  had  no  "extra-territorial  force."  (The  People  v.  Mosher, 
2  Par  Cr.  Rep.  195.)  In  like  manner,  if  Barker  Van  Voorhis 
had  on  his  return  to  this  State  after  accomplishing  his  second 
marriage,  been  indicted  under  the  statutes  to  which  I  have  re- 
ferred, either  for  bigamy  or  for  doing  a  prohibited  act,  it  would 
necessarily  follow  that  the  indictment  would  fail.  Yet  the  words 
of  the  statute  are  general ;  in  themselves  they  contain  no  limita- 
tion. But  we  have  been  referred  to  no  case,  and  I  think  none 
can  be  found,  where  such  general  words  have  been  interpreted  so 
as  to  extend  the  action  of  a  statute  beyond  the  territorial  authority 
of  the  legislature;  and  it  is  only  by  extending  it  that  our  courts 
can  take  cognizance  of  acts  there  committed.  Of  the  third  class, 
an  example  is  afforded  by  our  statute  defining  punishment  for  a 
second  offense  (§  8,  p.  699,  vol.  2,  R.  S.,  pt.  4,  ch.  1,  tit.  7.)  "If 
any  person,"  it  says,  convicted  of  any  offense  punishable  by  im- 
prisonment, etc.,  shall  afterward  be  convicted  of  any  offense,  he 
shall  be  punished  in  a  mode  prescribed.  It  is  evident  that  these 
words  are  general  and  taken  literally  would  apply  to  "any  person" 
committing  an  offense  in  or  out  of  the  State.  Applying  the  mode 
of  construction  contended  for  by  the  respondent,  nothing  more 
would  be  necessary.  But  the  legislature  show  that  such  is  not 
its  meaning.  By  section  10  they  declare  that  "every  person  who 
shall  have  been  convicted  in  any  of  the  United  States,  or  in  any 
district  or  territory  thereof,  or  in  any  foreign  country,  of  an  of- 
fense which,  if  committed  within  this  State  would,"  etc.,  "shall 
upon  conviction  of  any  subsequent  offense  committed  within  this 
State,  be  subject"  to  punishment  in  the  same  manner  and  to  the 
same  extent  "as  if  the  first  conviction  had  taken  place  in  a  court 
of  this  State."  Thus  by  implication  is  expressed  the  opinion  of 
the  legislature  that  the  general  words  of  the  eighth  section,  supra, 
would  not  meet  the  case  provided  for  in  the  tenth  section.  In 
Massachusetts,  after  a  statute  extending  the  prohibition  against  a 


STATUS   OF    MARRIAGE.  175 

second  marriage  under  circumstances  before  stated  to  inhabitants 
of  that  State  going  out  of  it  to  evade  the  law,  it  was  held  that  if  in 
any  event  the  foreign  marriage  could  be  invalidated,  it  could  not 
be  without  proof  of  the  intent  made  necessary  by  statute.  Nor 
without  it  could  there  be  a  conviction  for  polygamy.  (Com.  v. 
Lane,  113  Mass.  458.)  A  similar  distinction  exists  under  the 
English  law.  In  1  Hale's  P.  C.  662,  the  case  is  stated  of  a  woman 
who  married  in  England  and  afterward  married  abroad  during 
her  husband's  life.  It  was  held  she  was  not  indictable  under  the 
statute  of  the  former  country  for  bigamy,  for  the  offense  was 
committed  out  of  the  kingdom,  and  the  act  did  not  in  express 
terms  extend  its  prohibition  to  subjects  abroad.  It  is  otherwise, 
however,  in  regard  to  certain  offenses  committed  in  other  coun- 
tries by  Englishmen  against  their  government,  viz. :  Murder  and 
slave-trading,  because  the  statutes  have  so  provided.  (W arre ri- 
der v.  Warrender,  supra.)  Now  if  the  criminal  court  has  no 
jurisdiction  to  punish  the  act  when  committed  out  of  the  State, 
how  has  the  civil  court  jurisdiction  to  prohibit  the  doing  of  the 
act  out  of  the  State?  The  consequences  are  the  same  in  either 
case,  and  are  prescribed  by  the  same  statute.  Whether  a  man  is 
punished  by  fine  and  imprisonment,  or  by  the  disgrace  of  himself 
and  the  woman  he  married — the  bastardy  of  his  children — is  a 
difference  in  degree  only.  The  severer  punishment  is  in  the  last 
alternative.  Can  the  court  imply  the  power  to  inflict  it?  Can 
it  exist  unless  given  by  express  language?     I  think  not. 

The  statute  does  not  in  terms  prohibit  a  second  marriage  in 
another  State,  and  it  should  not  be  extended  by  construction. 
The  mode  of  construction  contended  for  by  the  respondent,  if 
applied  to  the  statutes  of  treason  and  dueling  and  the  punishment 
of  second  offenses,  would  make  useless  those  provisions  which 
relate  to  the  conduct  of  a  citizen  out  of  the  State  and  the  commis- 
sion of  crime  in  this  State  by  one  convicted  in  another  State.  Can 
they  be  disregarded,  or  the  legislature  charged  with  useless  enact- 
ments? On  the  contrary,  we  must  give  weight  and  meaning  to 
them :  to  their  presence  in  those  laws  and  their  absence  in  the  one 
of  marriages.  The  difference  is  essential,  and  the  varying  lan- 
guage cannot  be  disregarded.     There  is  first  a  prohibition  broad 


176  PRIVATE   INTERNATIONAL  LAW. 

as  in  the  act  before  us,  wide  enough  to  take  in  all  persons  within 
the  State,  and  prohibiting  certain  acts — a  personal  prohibition. 
Not  content  with  that,  the  statutes  go  further  and  extend  the  same 
consequences  to  those  acts  when  committed  out  of  the  State. 
These  provisions  are  lacking  in  the  law  before  us.  When,  there- 
fore, we  consider  the  legislation  of  this  State  before  referred  to, 
and  the  general  rules  regulating  the  territorial  force  of  statutes, 
we  cannot  but  regard  the  omission  to  provide  by  law  for  cases 
like  the  present  as  intentional,  but  if  not,  in  the  language  of  Lord 
Ellenborough,  in  Rex  v.  Skone  (6  East,  518),  "we  can  only  say 
of  the  legislature  quod  voluit  non  dixit."  This  view  is  sustained 
by  the  course  of  decision  and  legislation  in  Massachusetts.  In 
Medzvay  v.  Ncedham  (supra),  the  plaintiff  sued  for  the  support 
of  certain  paupers — one  Coffee  and  his  wife — alleged  to  have 
their  legal  settlement  with  the  defendant.  The  only  question  on 
the  trial,  or  the  subsequent  hearing  before  the  whole  court,  re- 
spected the  validity  of  his  marriage.  He  was  a  mulatto  and  his 
supposed  wife  a  white  woman.  They  were  inhabitants  and  resi- 
dents of  Massachusetts  at  the  time  of  their  marriage,  and  the 
statement  is  that  "as  the  laws  of  the  province  at  that  time  prohib- 
ited all  such  marriages,  they  went  into  the  neighboring  province 
of  Rhode  Island  and  were  there  married  according  to  the  laws  of 
that  province,"  and  returned  immediately  to  their  home.  Both 
courts  held  the  marriage  good.  The  statute  regulating  marriages 
in  Massachusetts  was  at  that  time  like  our  own,  but  the  court 
placed  their  decision  upon  the  general  principle  that  a  marriage 
good  according  to  the  laws  of  the  country  where  it  is  entered  into 
shall  be  valid  in  any  other  country,  Parker,  Ch.  J.,  saying:  "This 
principle  is  considered  so  essential  that  even  where  it  appears  that 
the  parties  went  into  another  State  to  evade  the  law  of  their  own 
country,  the  marriage  in  the  foreign  State  shall  be  valid  in  the 
country  where  the  parties  live ;"  and,  referring  to  the  statute 
which  declares  second  marriages  absolutely  void,  says :  "They 
are  only  void  if  contracted  within  this  State."  IV est  Cambridge 
v.  Lexington  (1  Pick.  506)  involved  the  rights  of  infant  children 
of  Samuel  Bemis,  paupers,  to  public  support  in  that  State.  The 
question  turned  upon  the  validity  of  his  second  marriage ;  the  first 


STATUS   OF   MARRIAGE.  177 

had  been  dissolved  for  his  adultery.  Afterward  and  while  his 
former  wife  was  living,  he  married  in  New  Hampshire,  and  the 
children  were  from  that  union.  The  court  held  that  if  the  mar- 
riage had  been  contracted  in  Massachusetts,  it  would  be  unlawful 
and  void,  but  that  the  laws  of  no  country  have  force  outside  of  its 
own  jurisdiction,  and  therefore  one,  who  by  reason  of  his  offense 
against  it  is  disabled  from  contracting  another  marriage,  may 
lawfully  marry  again  in  a  State  where  no  such  disability  is  at- 
tached to  the  offense ;  and  further,  having  a  right  to  marry  there, 
he  could  not  while  there  violate  the  statutes  of  Massachusetts 
against  polygamy.  It  was  therefore  held  that  the  children  were 
legitimate,  their  settlement  to  be  where  that  of  their  father  was, 
and  the  town  entitled  to  recover  for  their  support.  The  circum- 
stances of  Putnam  v.  Putnam  (8  Pick.  433)  are  singularly  like 
those  before  us;  and  it  was  held  that  although  the  second  mar- 
riage was  a  clear  case  of  evasion  of  the  laws  of  the  Common- 
wealth, it  was  valid  upon  the  general  rule  referred  to  in  the  cases 
already  cited.  The  court  also  say:  "If  it  shall  be  found  incon- 
venient or  repugnant  to  sound  principle,  it  may  be  expected  that 
the  legislature  will  explicitly  enact  that  marriages  contracted 
within  another  State,  which  if  entered  into  here  would  be  void, 
shall  have  no  force  within  this  Commonwealth."  There  is  thus 
recognized  a  necessity  discussed  earlier  in  this  opinion,  for  ex- 
press legislation,  if  the  citizen  is  to  be  held  bound  by  the  laws  of 
his  State  for  acts  performed  by  him  outside  its  limits.  Legisla- 
tion to  this  end  was  afterward  had.  (Rev.  Stat,  of  Mass.,  ch. 
75,  §  6;  Gen.  Stat.,  ch.  106,  §  6.)  Referring  to  provisions  of  the 
act  making  void  marriages  between  certain  parties,  or  by  persons 
m  prescribed  conditions  or  under  certain  circumstances,  it  de- 
clares, "where  persons  resident  in  this  State,  in  order  to  evade  the 
preceding  provisions  and  with  an  intention  of  returning  to  reside 
in  this  state,  go  into  another  State  or  country  and  there  have  their 
marriage  solemnized,  and  afterward  return  and  reside  here,  the 
marriage  shall  be  deemed  void  in  this  State."  It  is  not  necessary 
to  consider  the  extent  or  scope  of  this  statute.  It  has  been  dis- 
cussed by  the  courts  of  that  State,  and  is  said  by  Dewey,  J.,  in 
Com.  v.  Hunt  (4  Cush.  49),  "to  have  been  intended  to  meet  this 


178  PRIVATE    INTERNATIONAL   LAW. 

class  of  cases,  that  is,  of  individuals  fraudulently  attempting  to 
evade  the  law  of  Massachusetts,  so  far  as  respects  persons  di- 
vorced for  the  crime  of  adultery,  and  to  declare  such  marriages 
by  the  guilty  party  to  be  void  in  this  Commonwealth ;"  or  as  Hub- 
bard, J.,  says,  in  Sutton  v.  Warren  (10  Mete.  453) :  "The  only 
object  of  this  provision  is,  as  stated  by  the  commissioners  in  their 
report,  to  enforce  the  observance  of  our  own  laws  upon  our  own 
citizens,  and  not  suffer  them  to  violate  regulations  founded  in  a 
just  regard  to  good  morals  and  sound  policy."  We  have  no  law 
in  relation  to  this  subject  similar  to  that  of  Massachusetts  or  our 
statutes  before  cited  in  reference  to  dueling  and  treason.  There 
is  nothing  in  the  statute  to  indicate  an  intention  of  the  legislature 
to  reach  beyond  the  State  to  inflict  a  penalty.  Nor  can  I  discover 
an  intent  so  to  impress  the  citizen  with  the  prohibition  as  to  make 
an  act,  which  is  innocent  and  valid  when  performed,  an  offense 
when  he  returns  to  this  State  and  himself  a  criminal  for  perform- 
ing it.  Every  presumption  is  against  such  intention.  The  re- 
spondents rest  their  case  upon  the  general  words  of  the  statute. 
These,  taken  in  their  natural  and  usual  sense,  would  undoubtedly 
embrace  the  case  of  the  appellant.  "No  second  *  *  *  marriage 
shall  be  contracted  by  any  person  during  the  life-time  of  any  for- 
mer wife  of  such  person."  "Every  such  marriage  shall  be  abso- 
lutely void."  "No  defendant  convicted  of  adultery  shall  marry 
again  until  the  death  of  the  complainant."  Equally  broad  are  the 
provisions  of  the  criminal  law  declaring  the  punishment  of  the 
offender.  They  would  comprehend  every  second  marriage 
wherever  celebrated,  and  take  in  the  citizens  of  every  State.  It 
cannot  be  denied  that  they  are  subject  to  explanation  and  re- 
straint. Mosher  v.  The  People  (supra),  and  the  principle  on 
which  it  rests,  shows  the  criminal  law  to  have  no  application  to  a 
marriage  out  of  the  State.  The  same  rule  was  applied  in  Sims  v. 
Sims  (75  N.  Y.  466),  where,  after  a  very  full  discussion  of  the 
question  involved,  it  was  decided  that  the  provision  of  the  Re- 
vised Statutes  (2  R.  S.  701,  §  23),  declaring  a  person  sentenced 
upon  a  conviction  for  felony  to  be  incompetent  as  a  witness,  does 
not  apply  to  a  conviction  in  another  State;  that  it  has  reference 
only  to  a  conviction  in  this  State.     The  conviction  was  in  Ohio ; 


STATUS   OF   MARRIAGE.  179 

it  was  assumed  that  the  convict  would  have  been  incompetent  as 
a  witness  in  this  State.  Suppose  a  judgment  here  followed  his 
evidence,  and  it  was  afterward  prosecuted  in  Ohio.  Would  it  be 
competent  in  defense  to  show  that  it  was  obtained  upon  evidence 
inadmissible  by  the  laws  of  Ohio  ?  Clearly  not.  And  the  reason 
is  stated  in  the  case  cited :  "The  disqualification  is  in  the  nature  of 
an  additional  penalty  following  and  resulting  from  the  conviction 
and  cannot  extend  beyond  the  territorial  limits  of  the  State  where 
the  judgment  was  pronounced."  He  was,  therefore,  a  competent 
witness  in  the  State  of  New  York.  There  is  in  principle  a  close 
analogy  between  the  case  I  have  supposed  and  the  one  before  us. 
In  each  there  is  a  personal  disqualification.  In  one,  to  marry ;  in 
the  other,  to  testify.  In  neither  case  does  the  disqualification 
arise  from  any  law  of  nature  or  of  nations,  but  simply  from  posi- 
tive law.  Each  deprives  the  offender  of  a  civil  right.  Now  in 
case  of  the  witness,  his  testimony  in  New  York  results  in  a  judg- 
ment, a  contract  of  record,  to  which,  when  it  reaches  Ohio,  full 
effect  must  be  given,  and  for  its  enforcement  the  machinery  of  the 
law  of  that  State  put  in  motion.  In  the  other  case — that  in  hand 
— a  contract  is  entered  into  by  the  offender,  which  is  a  good  con- 
tract under  the  laws  of  the  State  where  made.  If  so,  it  should 
also  follow  that  to  each  party  thereto  and  to  their  issue  every  right 
and  privilege  growing  out  of  the  relation  so  established  must  at- 
tach. When,  therefore,  they  return  to  this  State  with  the  evi- 
dence of  that  contract,  can  the  courts  do  more  than  in  the  other 
case?  Are  they  not  limited  to  the  inquiry  whether  the  contract 
was  valid  in  the  State  where  made  ?  And  if  it  was,  how  can  they 
deny  to  the  child  its  inheritance?  Let  me  go  a  little  further. 
Suppose,  on  the  day  the  decree  of  divorce  was  granted,  Barker 
had  also  been  convicted  and  sentenced  for  a  felony.  He  would 
then  have  been  subject  not  only  to  the  statutes  above  cited,  but 
to  that  other  which  declares  "that  no  person  sentenced  upon  a 
conviction  for  felony  shall  be  competent  to  testify  in  any  cause." 
(2  R.  S.  701,  §  23.)  Disqualified  therefore  to  marry  or  to  testify, 
he  does  both  in  Connecticut,  brings  back  to  this  State  the  judg- 
ment record  and  the  marriage  contract.  If  the  first  cannot  be 
impeached  because  of  his  sentence,  neither,  as  it  seems  to  me,  can 


180  PRIVATE    INTERNATIONAL  LAW. 

the  other,  because  of  his  "conviction."  And  for  the  same  reason, 
viz. :  that  stated  by  Greenleaf  as  the  result  of  the  weight  of  mod- 
ern opinion,  sanctioned  by  this  court  in  Sims  v.  Sims  (supra), 
that  personal  disqualifications  arising,  not  from  the  laws  of  na- 
ture, but  from  positive  laws,  especially  such  as  are  of  a  penal  na- 
ture, are  strictly  territorial  and  cannot  be  enforced  in  any  country 
other  than  that  in  which  they  originated,     (i  Gr.  Ev.,  §  376.) 

Second:  Nor  are  we,  in  the  absence  of  express  words  to  that 
effect,  to  infer  that  the  legislature  of  this  State  intended  its  laws 
to  contravene  the  jus  gentium  under  which  the  question  of  the 
validity  of  a  marriage  contract  is  referred  to  the  lex  loci  con- 
tractus, and  which  is  made  binding  by  consent  of  all  nations.  It 
professedly  and  directly  operates  on  all.  To  impugn  it,  is  to  im- 
pugn public  policy.  And  while  each  country  can  regulate  the 
status  of  its  own  citizens,  until  the  will  of  the  State  finds  clear  and 
unmistakable  expression  that  must  be  controlling.  "Where," 
says  Marshall,  Ch.  J.  (U.  S.  v.  Fisher,  2  Cranch,  389),  "rights 
are  infringed,  where  fundamental  principles  are  overthrown, 
where  the  general  system  of  the  laws  is  departed  from,  the  legis- 
lative intention  must  be  expressed  with  irresistible  clearness  to  in- 
duce a  court  of  justice  to  suppose  a  design  to  effect  such  objects." 

Our  conclusion  is,  that  as  the  marriage  in  question  was  valid 
in  Connecticut,  the  Appellant  Rose  Van  Voorhis  is  a  legitimate 
child  of  Barker,  and  as  such  entitled  to  share  in  the  estate  of  the 
testator. 

The  judgment  should  be  reversed  and  a  new  trial  granted, 
without  costs  to  the  plaintiffs  or  Sarah  A.  Brintnall,  but  with  costs 
to  the  apellant  Rose  Van  Voorhis  and  the  respondents  Ella  and 
Elias,  to  be  paid  out  of  the  estate. 

All  concur,  except  Folger,  Ch.  J.,  not  voting. 

Judgment  reversed. 


PROPERTY  RIGHTS    UNDER    MARRIAGE.  181 

PROPERTY  RIGHTS  UNDER  MARRIAGE. 
BESSE  v.  PELLOCHOUX,  73  ILL.  285,  (1874). 

Appeal  from  the  Circuit  Court  of  LaSalle  county ;  the  Hon. 
Edwin  S.  Leland,  Judge,  presiding. 

Messrs.  Bickford,  Bowen,  &-Maloney,  for  the  appellant. 

Messrs.  Bushnell,  Bull  &  Gilman,  for  the  appellees. 

Mr.  Justice  Scott  delivered  the  opinion  of  the  Court : 

In  1850,  at  the  residence  of  the  parties  in  Switzerland,  appel- 
lant entered  into  an  ante-nuptial  agreement  with  Marie  Elizabeth 
Pellochoux,  whom  he  afterwards  married.  It  was  executed  and 
attested  with  all  the  usual  formalities,  and  was  doubtless  valid  by 
the  laws  of  the  canton  where  it  was  made. 

The  three  principal  paragraphs  are  as  follows : 

**ist.  The  future  husband  associates  and  renders  his  future 
wife  partaker  of  half  the  property  acquired  during  their  marriage. 

"2d.  The  furniture  of  the  contracting  parties  once  inherited 
and  inventoried,  will  be  confounded  and  divisible  into  two  equal 
parts,  between  the  conjoints. 

"3d.  Joseph  Nicolas  Besse,  as  well  for  his  wife,  Marie 
Madeline  Metroz,  as  himself,  both  present,  and  natives  of  Or- 
sieres,  where  they  now  live,  desiring  to  prove  to  the  young  couple 
their  approval  of  re-union  to  be  contracted,  give  to  their  son,  Jo- 
seph Nicolas,  half  of  their  immovable  as  well  as  movable  prop- 
erty, on  the  close  conditions  that  the  conjoints  will  work  the  otner 
half  still  retained  and  belonging  to  said  parents.  The  parents  of 
the  groom  now  forsake  all  claim  to  what  they  will  acquire  from 
this  day  in  favor  of  the  conjoints — the  whole  being  gratefully  ac- 
cepted by  the  receivers. 

"The  parties,  bringing  a  modification  to  clause  No.  2,  have 
agreed  that  the  furniture  inherited  or  now  inherited  will  be  di- 
vided the  couple,  without  any  regard  to  their  production,  from  the 
time  of  their  marriage. 

"The  bride's  parents,  both  present,  take  upon  themselves  the 
obligation  to  leave  their  daughter  Marie  a  share  of  their  succes- 
sion, equal  to  a  share  of  each  of  the  children  of  the  same  bed." 

Other  relatives  were  present,  who  made  gifts  to  the  bride  and 


182  PRIVATE   INTERNATIONAL  LAW. 

groom,  but  the  givers  reserved  the  possession  during  their  life- 
time. 

Within  a  few  years  after  their  marriage,  appellant  and  his 
wife  came  to  this  State.  On  their  arrival  in  this  country  they 
had  no  considerable  property  or  money.  The  real  estate  in  con- 
troversy was  all  acquired  after  the  change  of  domicil,  by  their 
united  industry,  the  title  to  which  was  taken  in  the  name  of  ap- 
pellant. In  1869  Marie  Elizabeth  died,  never  having  had  any 
children.  Appellees  are  her  heirs  at  law,  being  her  brothers  and 
sister.  Under  the  provisions  of  the  ante-nuptial  contract,  they 
claim  they  are  entitled  to  one-half  of  all  the  property,  both  real 
and  personal,  acquired  by  appellant  previous  to  the  death  of  his 
wife. 

The  original  contract  is  written  in  the  French  language,  and 
if  the  translation  found  in  the  record  is  correct,  it  must  be  con- 
ceded there  is  much  obscurity  in  its  provisions.  Appellees  hav- 
ing presented  it,  the  translation  must  be  taken  as  correct  for  the 
purposes  of  this  decision. 

The  words  that  are  supposed  to  create  an  estate  in  the  wife 
equal  to  one-half  of  all  the  property  acquired  during  marriage, 
are  of  doubtful  meaning.  They  have  no, definite  signification, 
like  well  understood  legal  terms.  The  language  is,  he  "associates 
and  renders  his  future  wife  partaker  of  one-half  the  property  ac- 
quired during  marriage."  How  is  she  rendered  "partaker?"  Is 
she  given  the  use  of  the  property  during  the  marriage  relation,  or 
is  she  to  be  invested  with  the  title  of  an  undivided  half  as  of  an 
absolute  ownership  ?  No  words  are  used  which,  in  their  ordinary 
or  legal  import,  define  what  estate  she  takes,  and  none  are  used 
that  convey  the  idea  the  estate,  whatever  it  is,  shall  descend  to  her 
heirs.  If  we  concede  the  view  of  the  law  contended  for,  that  the 
ante-nuptial  contract  is  operative  and  binding  as  to  property  ac- 
quired after  the  change  of  the  matrimonial  domicil,  the  decision 
could  be  rested  on  the  construction,  it  was  only  intended  to  make 
the  wife  "partaker"  in  the  use  of  one-half  of  the  property  ac- 
quired during  marriage,  and  that  no  intention  was  manifested  to 
invest  her  with  an  estate  of  inheritance,  in  case  she  should  die 
before  her  husband,  that  would  descend  to  her  heirs.     This  view 


PROPERTY   RIGHTS   UNDER  MARRIAGE.  183 

is  strengthened  by  reference  to  the  3d  clause,  where  the  parents 
of  the  groom  give  to  their  son,  not  to  the  future  wife,  one-half 
of  their  immovable  and  movable  property,  "on  the  close  condi- 
tions the  conjoints  will  work  the  other  half  still  retained  and  be- 
longing to  said  parents." 

It  could  not  have  been  the  intention  to  continue  a  community 
of  interest  between  their  son  and  the  heirs  of  the  future  wife,  in 
case  she  should  die  first.  The  construction  insisted  upon  would 
produce  this  result,  however  irrational  it  may  appear  to  be.  But, 
independently  of  this  construction  of  the  contract,  the  law  itself 
would  not  continue  a  community  of  interest  between  the  husband 
and  the  heirs  of  his  wife.  In  Murphy's  Heirs  v.  Murphy,  5  Mar- 
tin, 83,  it  was  decided,  when  persons  intermarried  in  a  country 
where  the  local  laws  create  a  community  of  goods,  and  remove  to 
a  country  where  that  principle  does  not  prevail,  the  community 
will  not  continue  between  the  husband  and  their  children  after 
the  death  of  the  wife. 

It  will  be  observed,  the  parents  of  the  bride  take  upon  them- 
selves the  obligation  to  leave  to  their  daughter  Marie  a  share  of 
their  succession,  equal  to  a  share  of  their  other  children.  This 
would  clearly  be  the  separate  estate  of  the  wife.  Thus  it  will  be 
seen,  when  all  the  provisions  of  the  instrument  are  read  together, 
it  was  the  intention  the  husband  and  wife  should  each  have  sepa- 
rate property.  It  was  so  expressly  stated  in  the  contract,  and 
what  the  husband  rendered  the  wife  '"partaker"  of,  must  have 
been  the  use  of  the  property  during  the  marriage  relation,  and 
not  the  absolute  ownership  of  any  distinct  portion. 

But,  regarding  the  other  construction  as  the  true  one,  that 
the  words  "render  her  partaker,"  give  the  wife  an  undivided  in- 
terest in  all  the  property  that  should  be  acquired  during  marriage, 
still  we  do  not  see  upon  what  principle  the  position  assumed  by 
counsel  can  be  maintained. 

The  contract  associating  the  parties  thereto  as  joint  partakers 
in  the  property  to  be  acquired  during  marriage,  does  not  specify 
any  place  where  it  is  to  be  performed.  But  we  are  not  left  in 
doubt  on  this  point.  An  examination  of  its  provisions  shows  it 
could  not  be  fully  performed  at  any  place  other  than  the  place 


184  PRIVATE    INTERNATIONAL  LAW. 

where  it  was  entered  into,  viz. :  at  the  place  of  the  matrimonial 
domicil.  This  is  apparent  from  the  provisions  of  the  third  para- 
graph. 

But  the  property  which  is  the  subject  of  this  litigation,  was 
all  acquired  after  the  husband  and  wife  had  changed  their  domi- 
cil, and  taken  up  their  permanent  abode  in  a  country  foreign  to 
the  matrimonial  domicil.  The  question  that  presents  itself  is, 
whether  the  after  acquired  property  will  be  affected  by  the  pro- 
visions of  the  ante-nuptial  contract,  or  whether  the  \a.\y  of  the 
actual  domicil  in  a  foreign  country  will  govern  as  to  all  future 
acquisitions. 

What  effect  is  to  be  given  to  ante-nuptial  agreements,  where 
parties  have  changed  their  domicil  and  made  new  acquisitions, 
has  been  the  subject  of  much  discussion.  There  is  great  confu- 
sion and  contradictory  statements  in  the  opinions  of  jurists,  in  all 
countries,  on  this  question. 

The  general  doctrine  is,  no  doubt,  as  stated  by  the  text  writ- 
ers :  Where  there  is  an  express  ante-nuptial  contract,  it  will  gen- 
erally be  admitted  to  govern  all  the  property  of  the  parties,  not 
only  in  the  matrimonial  domicil  but  in  every  other  place,  unless 
it  contravenes  some  law  or  principle  of  public  policy  of  the  coun- 
try where  it  is  sought  to  be  enforced.  Story  Con.  Laws,  sec.  143  ; 
Wharton  Con.  Laws,  sec.  197. 

But,  Mr.  Justice  Story  adds :  "Where  there  is  no  express 
nuptial  contract  at  all,  or  none  speaking  to  the  very  point,  the 
question  what  rule  ought  to  govern  is  surrounded  with  more  dif- 
ficulty." The  author  then  enters  upon  an  elaborate  review  of  the 
whole  subject,  and  among  others  reaches  these  conclusions: 

"1st.  Where  there  is  a  marriage  between  parties  in  a  for- 
eign country,  and  an  express  contract  concerning  their  rights  and 
property,  present  and  future,  that,  as  a  matter  of  contract,  will  be 
held  equally  valid  everywhere,  unless,  under  the  circumstances,  it 
stands  prohibited  by  the  laws  of  the  country  where  it  is  sought  to 
be  enforced.  It  will  act  directly  on  movable  property  every- 
where, but  as  to  immovable  property  in  a  foreign  country,  it  will, 
at  most,  only  confer  a  right  of  action,  to  be  enforced,  according 
to  the  jurisprudence  ret  sitae. 


PROPERTY   RIGHTS   UNDER   MARRIAGE.  185 

"2d.  Where  such  an  express  contract  applies,  in  terms  or 
intent  only,  to  present  property,  and  there  is  a  change  of  domicil, 
the  law  of  actual  domicil  will  govern  the  rights  of  the  parties  as 
to  all  future  acquisition."     Story  Con.  Laws,  sees.  184  and  185. 

The  doctrine  of  the  text  has,  for  its  support,  the  best  consid- 
ered cases  on  this  subject,  so  far  as  we  have  examined  them.  In 
Louisiana,  cases  involving  these  principles  have  been  the  most 
elaborately  discussed  of  any  arising  in  this  country.  The  juris- 
prudence of  that  State  is  founded  on  the  principles  of  the  French 
and  Spanish  laws,  which  create  a  community  of  interest  between 
husband  and  wife  as  to  all  acquests  and  gains,  and  the  frequent 
removals  from  and  into  States  where  that  principle  does  not  pre- 
vail, has  produced  litigation  involving  the  principles  we  are  con- 
sidering. The  decisions  of  the  courts  of  that  State  evince  great 
learning  and  research. 

As  was  said  in  Gale  v.  Davis'  Heirs,  4  Martin:  "Though  it 
was  once  a  question,  it  seems  now  to  be  settled,  that  where  a  cou- 
ple emigrate  from  the  country  where  their  marriage  was  con- 
tracted, into  another,  the  laws  of  which  are  different,  the  property 
which  they  acquire  in  the  place  where  they  have  moved  is  gov- 
erned by  the  laws  of  that  place." 

This  principle  was  again  recognized  in  Murphy's  Heirs  v. 
Murphy,  supra.  This  latter  case*  is  an  authority  for  the  first 
proposition  cited  from  Judge  Story's  work.  The  second  propo- 
sition rests  upon  the  principle  of  Gale  v.  Davis'  Heirs,  supra,  and 
Saul  v.  His  Creditors,  5  Martin,  (N.  S.)  569. 

The  latter  proposition  might  be  somewhat  more  comprehen- 
sively stated.  Not  only  where  there  is  no  contract  speaking  di- 
rectly to  the  point,  but  where  it  clearly  appears  it  was  to  apply  to 
personal  property  only,  or  to  be  performed  only  in  the  country 
where  made,  and  there  has  been  a  change  of  the  matrimonial 
domicil,  the  law  of  the  actual  domicil  will  control  as  to  all  prop- 
erty thereafter  acquired.  Thus,  in  Fuss  v.  Fuss  et  al.  26  Wis.  256, 
where  there  was  a  post-nuptial  contract  as  to  property  between 
persons  married  and  domiciled  in  Prussia,  who  then  owned  no 
property  elsewhere,  and  it  did  not  appear  they  contemplated  a 
change  of  domicil,  nor  that  there  was  any  intention  manifested  to 


186  PRIVATE   INTERNATIONAL  LAW. 

have  it  control  property  that  might  be  acquired  in  any  foreign 
country,  it  was  decided  the  after  acquired  property,  held  in  the 
name  of  the  husband,  was  not  affected  by  the  contract,  and  was 
subject  to  be  disposed  of  by  him,  by  will  or  otherwise,  according 
to  the  laws  of  the  actual  domicil. 

The  case  of  Castro  v.  lilies,  22  Tex.  479,  is  a  well  considered 
case,  and  announces  a  doctrine  which  has  its  foundation  in  reason 
as  well  as  in  natural  justice,  viz :  Where  there  has  been  a  change 
of  domicil,  though  there  be  an  express  contract,  if  it  do  not  ex- 
pressly provide,  or  the  intention  be  not  manifest,  it  is  to  apply  to 
and  govern  all  after  acquired  property,  wherever  the  parties  may 
reside,  it  will  not  affect  real  property  situated  in  a  new  domicil. 
The  reasoning  in  Saul  v.  His  Creditors,  supra,  is  cited  in  support 
of  this  view  of  the  law,  to  which  may  be  add.d  LeBreton  v, 
Myers,  8  Paige,  261 ;  Kneeland  v.  Ensley,  Meigs'  R.  620;  Gale  v. 
Davis'  Heirs,  supra;  Lyon  v.  Knott,  26  Miss.  548. 

In  the  case  at  bar  there  is  nothing  in  the  contract,  "speaking 
to  the  very  point,"  that  manifests  any  intention  that  all  future  ac- 
quisitions of  property  in  foreign  countries  should  be  controlled  by 
it.  It  will  bear  no  such  construction.  As  before  said,  it  appears, 
on  the  face  of  the  agreement,  it  was  to  be  and  could  not  be  fully 
performed  elsewhere  than  in  the  canton  where  the  parties  resided, 
in  Switzerland.  When  it  was  entered  into  it  could  not  have  been 
the  intention  to  change  their  domicil,  and  it  certainly  never  en- 
tered the  minds  of  the  parties  it  should  affect  the  property  that 
might  thereafter  be  acquired  in  foreign  countries. 

The  position  of  counsel  is  not  strengthened  by  the  allegation 
in  the  bill,  that,  by  the  force  and  effect  of  the  contract,  as  con- 
strued by  the  laws  of  the  canton  where  the  contracting  parties 
resided,  Marie  Elizabeth  would  be  entitled  to  the  undivided  one- 
half  of  all  the  property  wihch  the  husband  then  owned  or  should 
thereafter  acquire  during  the  marriage.  It  may  be  this  would  be 
the  true  construction  had  they  remained  in  Switzerland,  but,  as- 
suming the  parties  contracted  with  reference  to  the  laws  of  their 
domicil,  and  that  such  laws  entered  into  and  formed  a  part  of  the 
contract  itself,  still,  they  could  have  no  extra-territorial  effect. 
Notwithstanding  the  local  laws  may  form  a  part  of  the  contract, 


PROPERTY   RIGHTS   UNDER   MARRIAGE.  187 

the  extent  of  those  laws  is  limited  to  the  dominion  of  the  sovereign 
power  that  enacts  it.  It  is  not  by  virtue  of  the  laws  of  a  foreign 
State,  but  by  comity  that  exists  between  nations,  that  an  ante- 
nuptial contract,  executed  there,  is  allowed  to  control  as  to  the 
acquisition  of  property  over  our  customs  and  positive  laws.  No 
contract,  either  express  or  implied,  can  give  to  the  local  laws  a 
more  extended  force  than  they  really  had.  In  all  marriages,  the 
parties  may  be  presumed  to  tacitly  adopt  the  laws  of  their  domicil, 
and  to  agree  to  be  governed  by  them,  but  the  obligation  will  be 
limited  by  the  extent  of  those  laws.  Construing  this  contract  as 
though  the  local  laws  of  the  canton  constitute  a  part  of  it,  it  will 
not  be  any  more  obligatory  for  that  reason  in  another  jurisdiction. 
Outside  the  territorial  force  of  local  laws,  such  implied  or  tacit 
contract  would  cease  to  control  the  acquisition  of  property  in  an- 
other country  to  which  they  might  remove.  The  laws  of  the 
matrimonial  domicil  do  not  travel  with  the  parties,  and  no  contract 
can  give  them  vitality  or  effective  force  here.  No  State  is  bound 
to  admit  the  force  of  a  foreign  law  as  controlling  within  its  juris- 
diction. By  comity  we  permit  express  contracts  to  have  the  same 
force  and  effect  as  in  the  countries  where  made,  but  not  their  local 
laws.     LeBreton  v.  Bouchet,  3  Martin,  60. 

We  are  of  opinion  our  laws  must  govern  as  to  property  ac- 
quired by  appellant  and  his  wife  during  their  residence  in  this 
State.  There  is  no  express  contract  to  the  contrary.  The  con- 
tract was  manifestly  to  be  performed  in  the  canton  where  the 
parties  were  domiciled  when  they  entered  into  it.  It  is  local  in 
its  effect  and  operation,  and  it  could  not  have  been  the  intention 
ic  should  control  the  acquisition  of  property  at  any  other  place 
than  the  matrimonial  domicil.  Appellant,  having  changed  his 
domicil  by  the  consent  of  his  wife,  as  we  must  presume,  the  appli- 
catory  law  also  changes.  In  the  absence  of  any  express  contract 
to  the  contrary,  the  law  of  the  domicil  of  the  husband  governs  as 
to  the  acquisition  of  property. 

The  decree  will  be  reversed  and  the  bill  dismissed. 

.  .  Decree  reversed. 


188  PRIVATE    INTERNATIONAL  LAW. 

FOREIGN  DIVORCE. 

DITSON  v.  DITSON,  4  R.  I.  87,  (1856). 

Petition  for  divorce.  The  petition  represented  the  peti- 
tioner as  of  Little  Compton,  in  the  state  of  Rhode  Island,  and  that 
she  had  resided  within  the  state  for  the  last  three  years ;  that  she 
was  married  to  George  L.  Ditson  in  the  city  of  New  York,  in 
October,  1842 ;  that  she  has  at  all  times  faithfully  performed  her 
duties  as  a  wife,  but  that  her  said  husband  has  treated  her  with 
extreme  cruelty;  has  neglected  and  refused,  being  of  sufficient 
ability,  to  provide  necessaries  for  the  subsistence,  and  has  wilfully 
deserted  her  for  the  last  three  years,  and  been  guilty  of  other  gross 
misbehavior  and  wickedness  repugnant  to,  and  in  violation  of,  the 
marriage  covenant ;  that  her  said  husband  is  not  within  this  state, 
nor  within  fifty  miles  of  Newport.  Prayer,  for  a  decree  of  di- 
vorce from  the  bond  of  matrimony  between  the  petitioner  and  her 
husband,  and  that  the  name  of  the  petitioner  be  changed  from  her 
name  of  Mary  Ann  Ditson,  to  her  maiden  name  of  Mary  Ann 
Simmons,  and  for  further  relief. 

Accompanying  the  petition  was  an  affidavit  of  the  petitioner, 
stating  that  her  husband  was  not  a  resident  of  this  state,  and  was 
in  parts  unknown  to  the  petitioner.  The  petition  was  filed  in  the 
clerk's  office  of  the  supreme  court  for  the  county  of  Newport,  on 
the  9th  day  of  July,  1856;  and  the  clerk  certified  that  he  had  given 
six  weeks'  notice  of  the  application  by  publishing  it  in  the  New- 
port Mercury  for  that  period  next  before  the  sitting  of  the  court 
at  the  present  August  term. 

It  appeared  that  the  petitioner,  then  Mary  Ann  Simmons, 
was  married,  without  the  knowledge  or  consent  of  her  father, 
whilst  a  girl  at  school  in  New  York,  to  George  L.  Ditson,  an  Eng- 
lishman, to  whom  she  had  been  introduced  outside  the  school,  the 
ceremony  being  performed  by  Dr.  Spring  on  the  13th  of  Novem- 
ber, 1842 ;  that  after  marriage,  Mr.  and  Mrs.  Ditson  went  to  Eu- 
rope, and  from  thence  to  Cuba,  where  they  resided  for  several 
years;  that  shortly  after  their  return,  Ditson  went  to  Europe  by 
himself,  leaving  his  wife,  then  in  a  feeble  and  emaciated  condition, 
without  any  provision,  to  be  supported  by  her  father,  and  was 


FOREIGN   DIVORCE.  189 

gone  about  two  years ;  that  he  returned,  however,  and  lived  with 
her  again  for  a  short  period,  treating  her  morosely  and  unkindly ; 
but  there  was  no  proof  of  extreme  cruelty,  though  he  locked  her 
up  once  in  her  chamber  for  making  a  purchase  that  displeased 
him,  and  treated  her  with  neglect  and  spoke  of  her  in  a  careless 
and  indifferent  manner.  The  last  time  he  left  her  was  in  Boston, 
whence  he  went  to  Europe,  saying  just  before  he  went,  to  a  wit- 
ness, "that  he  meant  to  go  away,  and  did  not  care  a  damn  for 
Boston  or  any  body  in  it."  Upon  being  thus  deserted,  the  peti- 
tioner came  to  live  with  her  father  at  Little  Compton,  R.  I.,  of 
which  place  he  was  a  native,  and  then  a  domiciled  inhabitant. 
Ditson  had  been  absent,  at  the  time  of  filing  the  petition,  for  up- 
wards of  three  years,  during  which  time  he  had  not  once  commu- 
nicated by  letter  or  message  with  his  wife,  or  left,  or  made,  any 
provision  for  her  support,  though  of  sufficient  ability  so  to  do. 
From  the  time  of  his  desertion,  the  petitioner  had  lived  with  her 
father  in  Little  Compton,  except  about  three  months  of  the  time, 
which  she  had  passed  in  Newport,  R.  I.  During  this  time  she 
had  been  wholly  supported  by  her  father,  except,  in  what  manner 
did  not  appear,  the  little  that  she  had  been  able,  by  her  own  exer- 
tions, to  do  for  herself.  It  was  admitted  that  Ditson  had  never 
been  domiciled  in  Rhode  Island,  or  even,  to  the  knowledge  of  any 
witness,  been  within  the  state.  It  was  not  known  that  he  had  any 
domicil  in  the  country;  he  having  resided  since  the  marriage, 
either  in  Europe  or  Cuba,  and  having  remained  but  a  short  time 
either  in  Boston  or  New  York.  No  personal  notice  of  the  appli- 
cation for  divorce  had  been  given  to  him,  and  none  attempted  to 
be  given ;  since,  from  his  silence,  the  place  where  he  resided  or 
temporarily  dwelt,  was  wholly  unknown  to  the  petitioner  or  to  her 
friends. 

Under  these  circumstances,  the  chief  justice  intimating  a 
doubt  concerning  the  jurisdiction  of  the  court  over  the  cause,  de- 
sired the  counsel  for  the  petitioners  to  search  authorities  and  pre- 
sent them  to  the  court  upon  that  subject;  the  court  being  satis- 
fied that  the  petitioner  had  proved  by  the  desertion  of  her  husband 
without  cause,  and  by  his  neglect  to  provide  for  her  support,  be- 
ing of  sufficient  ability  so  to  do,  a  case  for  divorce  a  vinculo  under 


190  PRIVATE  INTERNATIONAL   LAW. 

the  statute,  provided  the  court  had,  under  the  circumstances 
proved,  power  and  jurisdiction  to  grant  her  petition. 

Francis  E.  Hoppin,  for  the  petitioner,  took  the  following 
points : — 

First,  that  the  petitioner  is  an  actual  bona  fide  resident  of 
Rhode  Island,  and  had  actually  resided  therein  for  upwards  of 
three  years  before  filing  her  petition;  (Dig.  1844,  pp.  264,  265,) 
coming  to  this  state  under  circumstances  which  enabled  her  to 
gain  a  domicil  here  distinct  from  and  independent  of  that  of  her 
husband.     Harteau  v.  Harteau,  14  Pick.  181. 

Second.  That  the  petitioner  being  a  domiciled  inhabitant  of 
this  state,  was  entitled,  in  her  desertion,  to  the  protection  and  re- 
lief of  its  laws.  Harding  v.  Alden,  9  Greenleaf,  R.  140.  Tolen 
v.  Tolen,  2  Blackf.  407.  There  having  been  no  change  of  resi- 
dence by  the  petitioner  for  the  purpose  of  evading  the  laws  of  any 
other  state,  the  law  of  the  place  of  actual  residence  of  the  peti- 
tioner must  govern  the  dissolution  of  her  marriage,  irrspective  of 
the  place  of  its  celebration.  Jackson  v.  Jackson,  1  Johns.  R.  434. 
Broden  v.  Fitch,  15  Johns.  R.  120.  Bradshaw  v.  Heath,  14 
Wend.  407.  Story's  Confl.  Laws,  §  230,  ed.  1836.  Clark  v. 
Clark,  8  Cushing,  385.  Barber  v.  Root,  10  Mass.  260. Harding  v. 
Alden,  9  Greenl.  R.  140.     Tolen  v.  Tolen,  2  Blackf.  140. 

Third.  To  deny  the  petitioner  relief  under  the  circumstances 
of  the  case,  upon  the  ground  of  want  of  jurisdiction  over  her  hus- 
band, because  he  had  not  been  served  with  personal  notice,  would 
enable  a  husband,  especially  a  foreigner,  as  in  this  case,  by  desert- 
ing his  wife,  to  deprive  her  of  all  the  redress  which  the  laws  of 
this  state  provide  for  her  as  one  of  its  citizens. 

Fourth.  To  entitle  the  court  to  jurisdiction  over  the  dissolu- 
tion of  the  marriage  of  one  of  its  citizens,  it  is  sufficient  if  the 
court  have  jurisdiction  over  the  petitioner,  and  personal  service 
upon  the  other  party  to  the  marriage  need  not  be,  if  it  cannot  be, 
made.     Bishop  on  Marriage  and  Divorce,  §§  728,  730,  731,  732, 

735.  739- 

Ames,  C.  J.  The  "Act  regulating  marriage  and  divorce"  in 
this  state,  requires,  in  words,  no  other  jurisdiction  in  this  court 
over  the  parties  to  a  petition  for  divorce,  than  that  the  petitioner 


FOREIGN   DIVORCE.  191 

should  have  resided  in  the  state  for  three  years  next  before  the 
preferring  of  the  petition ;  with  a  discretionary  power  in  the  court 
to  dispense  with  that  particular  term,  as  it  has  been  construed,  of 
residence  or  domicil.  Dig.  1844,  p.  265,  §11.  Public  Laws  since 
Dig.  1844,  p.  670.  This  dispensing  power  has,  however,  been 
very  sparingly  exercised  by  the  court,  and  never,  unless  indeed 
the  court  may  have  been  misled  by  false  testimony,  except  in  cases 
where  a  long  previous  residence,  and  especially  by  natives  of  the 
state,  had  been  interrupted  but  a  short  time  within  the  three  years 
preceding  the  petition,  or,  in  which  some  peculiar  circumstances 
loudly  invoked  the  aid  of  the  court,  <uch  as  an  open  adulterous 
marriage  by  the  wife,  the  petitioning  husband  having  resided  in 
the  state  for  a  long  portion  of  the  three  years,  and  the  court  being 
satisfied  that  he  came  to  the  state,  not  for  the  purpose  of  divorce, 
but  bona  fide  to  reside  here,  as  a  domiciled  or  settled  inhabitant. 
Of  late  years,  it  has  never  been  dispensed  with  where  the  alleged 
cause  of  divorce,  occurring  in  another  state,  was  not  a  cause  for 
the  species  of  divorce  asked,  in  that  state.  There  is  nothing, 
however,  in  the  statute,  as  we  regard  it,  which  obliges  the  court  to 
take  jurisdiction  of  such  a  petition  merely  because  one  of  the  par- 
ties only,  the  petitioner,  is  a  resident  of  the  state,  though  he  or  she 
may  have  been  such  for  the  period  of  three  years  next  preceding 
the  petition ;  although,  it  must  be  admitted,  that  the  practice  under 
the  statute  has  proceeded  upon  that  supposition.  By  the  10th 
section  of  the  act  of  this  state  "regulating  marriage  and  divorce," 
this  court  is  authorized  "by  rule  or  otherwise  to  prescribe  the 
notice  to  be  given  on  petitions  for  divorce,  alimony,  separate  main- 
tenance, and  custody  of  children,  and  may  issue  such  process  as 
may  be  necessary  to  carry  into  effect  the  powers  conferred  on 
them  by  this  act."  Dig.  1844,  pp.  264,  265.  By  the  14th  rule  of 
the  court,  made  by  the  authority  of  this  act,  "On  all  petitions  for 
divorce,  the  adverse  party,  if  resident  within  this  state,  or  within 
fifty  miles  of  the  place  of  trial,  shall  be  notified  and  served  with  a 
copy  of  such  petition,  three  weeks  at  least  before  the  sitting  of  the 
court ;  and  if  resident  without  the  state,  and  more  than  fifty  miles 
from  the  place  of  trial,  notice  shall  be  given  in  some  one  of  the 
public  newspapers,  printed  in  Newport  or  Providence,  six  weeks 


192  PRIVATE   INTERNATIONAL   LAW. 

before  the  sitting  of  the  court;  and  such  petitions  as  contain  an 
allegation  that  the  adverse  party  is  not  resident  in  this  state,  or 
within  fifty  miles  of  the  place  of  trial,  shall  be  accompanied  with 
an  affidavit  of  the  petitioner,  stating  his  or  her  knowledge  and  be- 
lief of  the  place  of  residence  of  such  adverse  party."     Rules  of 
Sup.  Ct.  of  R.  I.  prefixed  to  Vol.  I.  R.  I.  Reports,  pp.  xii  and  xiii. 
Under  this  rule,  this  court  has  acted  in  giving  constructive  notice 
to  non-resident  defendants  to  petitions  for  divorce,  in  cases  where 
relief  of  this  kind  has  been  asked  by  resident  citizens,  and  has, 
upon  proper  proof,  afforded  that  relief,  even  though  the  defend- 
ants have  never  resided  within  this  state  or  subjected  themselves 
in  any  way  to  its  jurisdiction.     If,  however,  it  appeared  from  the 
affidavit  of  the  petitioner  or  otherwise,  in  the  course  of  the  hear- 
ing, that  the  petitioner  knew  of  the  place  of  residence  of  the  other 
party,  and  that  place  was  within  the  United  States,  the  practice 
has  for  many  years  been  to  continue  the  petition,  and  order  per- 
sonal notice  of  the  pendency  thereof  to  be  given  to  such  party 
through  the  mail.     In  the  case  at  bar,  under  this  rule,  upon  affi- 
davit of  the  petitioner  that  according  to  her  best  knowledge  and 
belief,  the  defendant,  her  husband,  doth  not  reside  in  this  state,  or 
within  fifty  miles  of  the   town  of  Newport,  but   is  in   parts  un- 
known, he  being  a  foreigner,  the  notice  prescribed  by  the  rule  has 
been  given,  by  publication  of  the  same,  for  the  space  of  six  weeks 
before  the  sitting  of  the  court,  in  the  Newport  Mercury,  a  paper 
printed  in  the  city  of  Newport.     If,  however,  by  the  general  law 
pertaining  to  this  subject,  a  decree  of  divorce  a  vinculo,  made 
here,  be  void  elsewhere,  unless  both  parties  to  the  marriage   are 
resident  in  this  state  at  the  time  of  the  application,  or  the  respon- 
dent has  been   served  with  notice  in   the  state,  or   being  served 
without  notice  out  of  it,  has  appeared  and  submitted  himself  to 
our  jurisdiction,  so  far  from  feeling  compelled  by  the  language 
of  our  statute,  as  it  stands  at  present,  to  pass  such  decrees,  we 
should  feel  compelled  to  refuse  to  pass  them,  lest  they  should 
bring  upon  the  resident  petitioner,  in  such  cases,  greater  evils 
than  those  that  our  statute  was  designed  to  remedy. 

When,  therefore,  this  question  presented  itself  to  the  court 
for  the  first  time  since  I  had  the  honor  of  presiding  over  it,  in  the 


FOREIGN   DIVORCE.  193 

case  at  bar,  my  brethren  on  the  bench,  though  less  doubtful  with 
regard  to  our  jurisdiction  in  such  a  case  than  myself,  consented, 
at  my  request,  to  reserve  the  question  for  mature  consideration 
and  deliberate  decision,  in  order  that  the  course  now  adopted 
might  for  the  future  guide  ourselves  as  well  as  those  subject  to 
our  jurisdiction.  Every  case,  during  our  recent  circuit,  in  which 
it  has  since  arisen,  has  also  been  reserved ;  and  the  question  hav- 
ing been  argued  before  us  by  the  counsel  in  this  case,  was  already 
under  consideration,  when  our  attention  was  attracted  by  a  re- 
mark of  the  learned  chief  justice  of  Massachusetts,  in  delivering 
the  judgment  of  his  court  in  the  recently  reported  case  of  Lyon  v. 
Lyon,  2  Gray,  367,  decided  in  1854,  that  this  court,  in  its  decree 
of  divorce,  reviewed  and  considered  in  that  case,  had  violated, 
upon  this  subject,  principles  of  general  law.  Such  a  remark, 
coming  from  a  quarter  entitled  to  so  much  respect,  has  only  in- 
duced us  more  carefully  to  scrutinize  by  the  light  of  the  general 
law  the  true  grounds  of  jurisdiction  in  such  cases ;  so  that  how- 
ever, in  ex  parte  hearings  of  them,  we  may  be  occasionally  misled 
as  to  facts,  it  may  not  be  supposed  that  we  are  careless  of,  or 
would  deliberately  violate  in  this  respect  settled  principles  of  law. 

In  the  case  of  Lyon  v.  Lyon,  supra,  which  was  an  application 
for  divorce  on  the  part  of  a  husband  residing  in  Massachusetts, 
a  former  decree  of  this  court  divorcing  the  same  parties  a  vinculo 
on  the  application  of  the  wife,  was  declared  void;  partly  on  the 
ground^  that  it  was  obtained  here  by  a  domiciled  inhabitant  of 
Massachusetts  in  fraud  of  a  statute  of  that  state,  which  avoids 
divorces  obtained  out  of  the  state  for  causes  occurring  in  it,  or  for 
any  cause  which  would  not  authorize  a  divorce  by  its  laws,  when 
obtained  by  a  citizen  of  Massachusetts  who  goes  "into  any  other 
state  or  country  in  order  to  obtain  the  divorce."  We  have  no 
remark,  except  of  approval,  to  make  of  the  statute  of  Massachu- 
setts, or  of  this  decision  under  it,  upon  the  facts  made  to  appear 
ex  parte  to  that  court,  probably  quite  different  from  the  facts 
made  to  appear  in  the  same  matter  before,  ex  parte,  to  this. 

It  is  a  well-settled  principle  of  general  law  upon  this  subject, 
that  the  tribunals  of  a  country  have  no  jurisdiction  over  a  cause 


194  PRIVATE   INTERNATIONAL   LAW. 

of  divorce,  wherever  the  offence  may  have  occurred,  if  neither  of 
the  parties  has  an  actual  bona  fide  domicil  within  its  territory; 
and  this  holds,  whether  one  or  both  the  parties  be  temporarily  re- 
siding within  reach  of  the  process  of  the  court,  or  whether  the 
defendant  appears  or  not,  and  submits  to  the  suit.  This  neces- 
sarily results  from  the  right  of  every  nation  or  state  to  determine 
the  status  of  its  own  domiciled  citizens  or  subjects,  without  inter- 
ference by  foreign  tribunals  in  a  matter  with  which  they  have  no 
concern.  Bishop  on  Marriage  and  Divorce,  §  721,  p.  721,  2d  ed. 
and  cases  cited.  We  entirely  agree  with  the  judgment  given  by 
the  supreme  court  of  Massachusetts  on  this  point,  in  the  well- 
considered  case  of  Hanover  v.  Turner,  14  Mass.  227,  231 ;  in 
which  both  this  rule,  and  the  reason  for  it  are  stated  with  that 
precision  and  largeness  of  view,  which  indicate  that  the  court 
fully  comprehended  the  question  before  them  as  a  question  of 
general  law;  a  kind  of  praise  which  cannot,  with  any  justice,  be 
bestowed  upon  many  American  cases  upon  this  important  and 
interesting  subject. 

Our  attention  has  been  attracted  to  the  case  of  Lyon  v.  Lyon, 
because,  in  it,  the  decree  of  this  court  divorcing  Mrs.  Lyon  is 
arraigned,  and  declared  void,  upon  general  principles  of  law 
apart  from  the  statute,  that  is,  as  we  understand  it,  apart 
from  the  principle  of  general  law  embodied  in  it.  The  learned 
court  are  made  to  say,  that  "upon  general  principles  of  jus- 
tice and  policy,"  the  decree  in  question  would,  "before  the 
revised  statutes,"  have  been  held  void,  "partly  on  the  ground  that 
it  was  a  proceeding  in  fraud  of  our  law,"  to  which  we  agree  upon 
the  facts  proved  to  the  court,  "and  partly  because  the  court  of 
the  foreign  state  (Rhode  Island)  could  have  no  jurisdiction  of  the 
subject-matter  and  of  both  the  parties."  2  Gray,  368,  369.  And 
again,  at  the  conclusion  of  the  opinion,  the  court  recur  to  the 
same  matter:  "But  if  not  within  the  statute,  for  the  reasons  be- 
fore given,  we  are  of  opinion  that  the  decree  in  question  is  void, 
upon  general  principles  of  law."  lb.  370.  By  this  we  under- 
stand that  the  learned  court  must  have  intended, — First,  that  by 
the  general  law  applicable  to  the  subject  of  divorce,  the  supreme 


FOREIGN   DIVORCE.  195 

court  of  Rhode  Island  had  no  jurisdiction  of  the  subject  matter 
either  because  the  marriage  took  place,  or  because  the  alleged 
cause  of  divorce  occurred  out  of  its  jurisdiction;  and  second,  be- 
cause the  court  had  not  jurisdiction  of  both  parties,  the  husband 
not  being  domiciled  in  Rhode  Island,  and  no  effectual  service 
upon  him  within  the  state  having  been  obtained,  and  he,  by  ap- 
pearance, not  having  submitted  his  cause  to  the  jurisdiction  of 
the  court. 

With  regard  to  the  alleged  want  of  jurisdiction  over  "the 
subject-matter"  which  includes,  as  distinct  from  jurisdiction  over 
the  parties,  only  the  marriage  and  cause  of  divorce,  we  think  that 
there  must  be  some  inaccuracy  in  the  language  of  the  report.  We 
think  so,  because,  as  said  by  Jurge  Story,  "The  doctrine  now 
firmly  established  in  America  upon  the  subject  of  divorce  is,  that 
t'je  law  of  the  place  of  the  actual  bona  fide  domicil  of  the  parties 
gives  jurisdiction  to  the  proper  courts,  to  decree  a  divorce  for  any 
cause  allowed  by  the  local  law,  without  any  reference  to  the  law 
of  the  place  of  the  original  marriage,  or  to  the  place  where  the 
offence  for  which  the  divorce  is  allowed  was  committed."  Story's 
Conflict  of  Laws,  §  230  a;  and  Bishop  on  Marriage  and  Divorce, 
§  720,  and  note  2,  where  see  a  very  instructive  note,  containing 
all  the  authorties,  domestic  and  foreign.  See  also  lb.  §§  740,  741, 
&c.  We  think  so,  more  especially,  because,  as  we  understand  the 
scope  of  his  reasoning,  no  one  has  vindicated  this  doctrine  of 
American  law  with  more  ability  than  the  present  learned  chief 
justice  of  Massachusetts,  in  delivering  the  judgment  of  his  court 
in  the  case  of  Harteau  v.  Harteau,  14  Pick.  181,  185,  186.  We 
regard,  therefore,  the  alleged  want  of  jurisdiction  in  Mrs.  Lyon's 
case,  on  the  ground  of  want  of  jurisdiction  over  the  subject-matter 
as  something  distinct  from  want  of  jurisdiction  over  both  parties, 
as  a  mere  inaccuracy  of  statement ;  the  court  intending,  perhaps, 
that,  not  having  jurisdiction  over  both  parties,  the  supreme  court 
of  Rhode  Island  had  neither  jurisdiction  over  the  marriage 
nor  the  delictum, — that  is,  over  the  subject-matter.  It  is  true  that 
in  Barber  v.  Root,  10  Mass.  265,  266,  a  case  referred  to  by  the 
learned  court  in  Lyon  v.  Lyon  for  the  grounds  of  their  judgment, 


196  PRIVATE   INTERNATIONAL  LAW. 

stress  seems  to  be  laid  upon  the  place  of  contract  and  of  the  place 
of  the  violation  of  it,  as  affording  or  not  affording  ground  for 
jurisdiction,  as  the  case  might  be,  over  the  subject-matter;  partly 
upon  the  idea  of  the  subsistence  or  non-subsistence  of  the  con- 
tract within  the  territory  of  the  court  taking  jurisdiction,  and 
partly,  so  far  as  the  delictum  was  concerned,  upon  some  notion 
of  police.  We  understand,  however,  the  supreme  court  of 
Massachusetts  to  have  rejected  both  these  false  and  confused 
notions;  and  in  Hanover  v.  Turner,  14  Mass.  230,  231;  Harteau 
v.  Harteau,  14  Pick.  182-187  inch,  and  therefore  in  Lyon  v.  Lyon, 
2  Gray,  368-370,  to  be  understood  as  regarding  marriage  not  as 
an  executory  contract  between  the  parties  to  it,  but  as  an  univer- 
sally recognized  relation  between  them,  deeply  affecting  their 
status,  or  legal  and  social  condition,  and  for  that  reason,  properly 
dissoluble  according  to  the  law  of  the  country  in  which  they  are 
domiciled,  without  reference  to  the  law  of  the  place  of  the  original 
contract  of  marriage,  out  of  which  the  relation  has  emerged.  We 
also  understand  the  result  of  these  decisions  to  be,  that  a  breach 
of  the  duties  of  this  relation,  though  sometimes  a  crime,  and  when 
such,  punishable  in  that  character  only  in  the  place  where  it  is 
committed,  yet,  considered  as  a  cause  of  divorce,  to  have  no  lo- 
cality ;  and,  therefore,  to  be  regarded  as  a  cause  of  divorce,  wher- 
ever occurring  or  committed,  equally  as  if  it  had  occurred  or  been 
ccmmitted  within  the  territory  of  the  state  having  jurisdiction 
over  the  parties,  in  the  sense  of  both  parties  to  the  relation. 

We  may  remark  in  passing,  although  we  do  not  mean  to 
launch  into  the  sea  of  conflict  on  this  subject  between  the  laws  of 
England  and  Scotland,  that  whilst  it  is  the  doctrine  of  both  the 
Scotch  and  English  courts,  as  well  as  of  our  own,  that  the  place 
where  the  offence  is  committed,  whether  in  the  country  where  the 
suit  was  Drought,  or  a  foreign  country,  is  immaterial  to  jurisdic- 
tion in  divorce,  it  is  the  equally  well-settled  doctrine  of  the  Scotch 
courts  that  the  place  of  marriage  is  also  immaterial ;  and  this  doc- 
trine, as  a  doctrine  of  Scotch  law,  has  recently  received  the  appro- 
bation of  the  house  of  lords,  sitting  upon  a  Scotch  appeal,  if  some 
doubt  be  not  also  thrown  by  the  decision  upon  the  peculiar  doc- 
trine of  the  English  law,  as  held  in  McArthy  v.  McArthy,  and 


FOREIGN   DIVORCE.  197 

supposed  to  be  held  in  Lolley's  Case,  that  an  English  marriage 
cannot  be  dissolved  by  a  foreign  tribunal.  Geils  v  Dickenson,  20 
Eng.  L.  &  Eq.  R.  1,  10,  11,  opinion  of  Lord  St.  Leonards;  and  see 
Bishop  on  Marriage  and  Divorce,  §§  745-761  inch,  and  cases  cited. 

The  other  principle  of  general  law  mentioned  in  the  decision 
of  Lyon  v.  Lyon,  sup.,  as  violated  by  this  court  in  divorcing  Mrs. 
Lyon,  to  wit,  that  the  court  had  not  jurisdiction  over  both  parties 
to  the  marriage,  presents  a  more  difficult  question,  and  one  which, 
as  we  have  said,  had  attracted  our  attention  previous  to  our 
knowledge  of  the  above  decision  and  opinion  of  the  supreme 
court  of  Massachusetts. 

The  question  raised  by  the  case  at  bar,  and  for  the  decision 
of  which  in  the  affirmative  this  court  is  said  by  the  supreme  court 
of  Massachusetts  in  Lyon  v.  Lyon  to  have  pronounced  a  decree 
in  favor  of  Mrs.  Lyon  void  upon  general  principles  of  law,  is, 
whether  the  bona  fide  domiciliation  of  the  petitioning  party  in  this 
state  is  sufficient  to  give  this  court  jurisdiction  to  grant  a  divorce 
a  vinculo,  although  the  other  party  to  the  marriage  to  hz  dissolved 
has  never  been  subject  to  our  jurisdiction,  never  been  personally 
served  with  notice  of  the  petition  within  the  state,  or  appeared 
and  answered  to  the  petition,  upon  constructive  notice,  or  upon 
being  served  with  personal  notice  of  it,  out  of  the  state  ?  In  other 
words,  the  question  is,  whether,  as  a  matter  of  general  law,  a  valid 
decree  of  divorce  a  vinculo  can  be  passed  in  favor  of  a  domiciled 
citizen  of  the  state,  upon  mere  constructive  notice  to  the  foreign 
or  non-resident  party  to  the  marriage,  against  whom,  or  to  dis- 
solve whose  marital  rights  over  or  upon  the  petitioner,  the  aid  of 
the  court  is  invoked  ? 

Such  a  question,  as  said  by  a  late  excellent  writer  upon  this 
subject,  can  never  arise  in  England,  where  this  whole  matter,  so 
far  as  it  is  a  matter  of  judicial  determination,  is  committed  to  the 
ecclesiastical  courts.  Those  courts  have  no  power  to  dissolve 
marriages,  good  ab  initio,  for  supervenient  causes,  and  can  only 
act  for  such  causes  upon  suits  for  divorce  a  mensa  et  thoro  and 
for  restoration  to  marital  rights;  their  jurisdiction  in  jactitation 
suits,  being  confined  to  the  ascertainment  of  whether  a  marriage 
reputed  or  boasted  of  ever  existed,  and  in  nullity  suits,  to  the  de- 


198  PRIVATE   INTERNATIONAL   LAW. 

daring  marriages  void,  or  avoiding  them  from  the  time  of  the 
decree,  which,  from  causes  pre-existing  the  ceremony  of  mar- 
riage, were,  by  law,  either  void  or  voidable  ab  initio.  The  com- 
mon law  of  their  jurisdiction,  as  shown  by  the  106th  canon  of 
1603,  and  afterwards  enacted  by  statute,  was,  that  no  person 
could  be  cited  out  of  his  diocese;  the  court  interfering  in  such 
matters,  it  is  said,  for  the  good  of  souls  merely,  and  its  jurisdic- 
tion being  confined,  with  that  of  the  bishop  or  ecclesiastical  dig- 
nitary represented  by  it,  to  the  care  of  the  souls  of  those  domi- 
ciled, or  at  least  present  within  the  diocese.  It  is  also  held  that 
the  canon  does  not  apply  to  persons  having  no  fixed  residence  in 
the  kingdom,  but  only  to  persons  cited  who  are  inhabitants  and 
dwellers  in  some  diocese  or  district  placed  by  law  under  some  par- 
ticular ecclesiastical  jurisdiction,  and  that  the  statute  does  not 
extend  to  Ireland.  Bishop  on  Marriage  and  Divorce,  §  733,  and 
p.  734,  n.  2,  2d  ed.  1  Blacks.  Com.  441,  442  and  notes.  3  lb. 
92-95  and  notes.  4  lb.  275,  276,  vide  passim,  N.  Y.  Ed.  1827. 
It  is  evident  that  the  peculiar  jurisdiction  of  these  courts  does  not 
depend  upon  the  domicil  of  the  libellant,  who,  though  a  foreign 
or  Scotch  resident,  may  follow  his  wife,  or  she  her  husband,  into 
the  proper  ecclesiastical  tribunal  of  England  for  the  appropriate 
relief  to  the  case  which  it  is  empowered  to  give.  The  court  must, 
however,  have  jurisdiction  over  the  defendant,  or  its  decree,  from 
its  nature,  could  have  no  personal  effect  upon  him  or  her ;  but  ex- 
cept the  defendant  be  domiciled  in  some  particular  diocese  or  dis- 
ii  xct  it  is  apprehended  that  a  temporary  residence  of  the  defendant 
in  such  district  or  diocese,  is  sufficient  to  give  the  court  jurisdic- 
tion. In  Geils  v.  Dickenson,  20  Eng.  L.  &  Eq.  R.  1,  9,  10,  13, 
14,  the  marriage  having  taken  place  in  England,  between  a 
Scotchman  and  an  Englishwoman,  the  parties  were  domiciled  in 
Scotland,  paying  only  occasional  visits  to  England.  They  re- 
sided in  Scotland  until  September,  1845,  when  the  wife  left  her 
husband,  and  returned  to  her  mother's  house  in  England.  In 
October,  1845,  tne  husband  instituted  in  the  arches  court  of  Can- 
terbury a  suit  for  restitution  to  conjugal  rights,  to  which  the  wife 
gave  in  a  "responsive  allegation,"  in  which  she  stated  various  acts 
of  cruelty  and  adultery  committed  by  her  husband  in  Scotland, 


FOREIGN    DIVORCE.  199 

and  became  an  actor  in  the  cause  as  well  as  a  defendant,  by  pray- 
ing that  she  might  "be  separated  from  bed,  board,  and  mutual 
cohabitation"  with  her  husband,  by  reason  of  his  adultery,  and 
cruel  and  unnatural  practices  upon  the  person  of  the  proponent. 
The  arches  court  entertained  both  the  original  suit  and  the  new 
action  raised  by  way  of  defence  in  it,  and  finding  the  alleged  adul- 
tery of  the  husband  proved,  divorced  the  wife,  as  she  desired, 
from  bed,  board,  and  cohabitation  with  her  husband,  until  they 
might  be  reconciled  to  each  other,  inhibiting  both  from  contract- 
ing another  marriage  during  the  lifetime  of  the  other.  The  eccle- 
siastical court  in  this  case  took  jurisdiction  at  the  suit  of  a  plain- 
tiff domiciled  in  Scotland  pursuing  his  wife  thence  to  England 
for  its  relief  against  her,  freshly  returned  to  its  jurisdictional  dis- 
trict, and  again  upon  her  "responsive  allegation,"  both  as  a  de- 
fendant and  actor  in  the  cause,  granted  her  a  divorce.  The  wife 
subsequently  raised  an  action  for  divorce  a  vinculo  in  Scotland, 
for  the  same  acts  of  adultery  by  virtue  of  which  she  defended  her- 
self and  obtained  the  divorce  a  mensa  et  thoro  in  England,  which 
was  granted  by  the  court  of  session,  and  afterwards  confirmed, 
on  appeal,  by  the  house  of  lords ;  and  although  the  only  question, 
both  below  and  above,  turned  upon  the  effect  of  the  decree  of  the 
court  of  arches — that  is,  whether  it  estopped  her  from  further 
relief,  or  was  legally  consistent  with  it, — neither  court  nor  counsel 
intimated  a  doubt  as  to  the  jurisdiction  of  the  court  rendering 
the  decree.  It  is  evident,  that  from  the  peculiar  principles  which 
regulate  the  jurisdiction  and  action  of  the  English  ecclesiastical 
courts,  in  matters  of  divorce,  very  little  light  can  be  gathered  to 
aid  us  in  our  investigation. 

As  a  matter  of  general  law,  this  must  be  sought  in  the  legal 
nature  of  marriage,  and  what  it  consequently  is,  upon  which  3 
decree  of  divorce  operates,  and  in  the  jurisdiction  of  a  state  over 
its  own  citizens  and  subjects,  as  well  as  in  the  decisions  of  courts 
bearing  directly  upon  this  point,  or  elucidating  the  principles 
which  govern  its  decision.  It  is  undoubtedlv  true,  as  a  common- 
law  principle,  applicable  to  the  judgments  of  its  courts,  that  they 
bind  only  parties  to  them,  or  persons  in  such  relation  to  the  parties 
and  to  the  subject  of  the  judgment,  as  to  be  deemed  privies  to  it. 


200  PRIVATE    INTERNATIONAL  LAW. 

The  rule  of  this  system  of  jurisprudence,  which  brings  privies 
within  the  operation  of  the  notice  served  upon  the  principals  to  a 
judgment  and  binds  them  by  its  effects,  is  founded  upon  quite  as 
clear  a  policy,  and  is  sanctioned  by  quite  as  complete  justice,  as 
that  which  renders  the  judgment  obligatory  upon  those  whom 
they  represent.  It  is  founded  upon  the  great  policy  ut  sit  finis 
litium,  and  upon  the  necessity,  to  carry  out  this  policy,  that  the 
future  and  contingent  representatives  of  the  parties  in  relation 
to  the  subject  of  the  judgment  should  be  bound  by  it.  Again, 
there  is  no  system  of  jurisprudence,  which,  founded  as  the  juris- 
diction of  the  court  is  upon  the  personal  service  of  the  subpoena, 
is  more  special  in  its  requisition  that  all  parties  interested  should 
be  served  in  the  suit,  in  order  to  be  bound  by  the  decree,  than 
that  administered  by  the  English  chancery ;  yet  even  in  this  court, 
from  the  same  policy,  and  upon  the  same  necessity,  the  first  tenant 
in  tail,  or  the  first  person  entitled  to  the  inheritance,  if  there  be  no 
tenant  in  tail  living,  or  even  the  tenant  for  life,  as  the  only  repre- 
sentative to  be  found  of  the  whole  inheritance,  by  his  appearance 
to  the  suit  binds  to  the  decree  in  it  all  those  subsequently  and  con- 
tingently interested  in  the  estate ;  the  court,  in  administering  this 
rule  of  representation  of  parties,  taking  care  only  that  the  repre- 
sentative be  one  whose  interest  in  the  subject  of  the  suit  is  such 
as  to  insure  his  giving  a  fair  trial  to  the  question  in  contestation, 
the  decision  of  which  is  to  affect  those  who  remotely  or  contin- 
gently take  after  him.  Again,  there  is  the  large  class  of  proceed- 
ings in  rem,  or  quasi  in  rem,  known  especially  to  courts  adminis- 
tering public  or  general  law,  and  borrowed  from  thence  into  every 
system  of  jurisprudence,  in  which,  the  jurisdiction  being  founded 
upon  the  possession  of  the  thing,  the  decree  binds  all  interested  in 
it,  whether  within  or  without  the  jurisdiction  of  the  nation  setting 
up  the  court,  and  whether  personally  or  constructively  notified  of 
the  institution  or  currency  of  the  proceeding.  This,  too,  is 
founded  upon  a  necessity  or  high  expediency,  since,  without  it, 
a  prize  or  instance  court,  for  example,  could  not,  so  scattered  or 
concealed  are  the  parties  interested,  perform  any  of  the  functions 
for  which,  by  the  general  or  public  law,  it  is  set  up.  Proceedings 
of  this  nature  must,  we  think,  be  familiar  to  the  courts  of  Massa- 


FOREIGN   DIVORCE.  201 

chusetts;  and  probably  not  a  day  passes  in  which  things  within 
their  jurisdiction  are  not,  by  direct  attachment  or  garnishee  proc- 
ess, seized,  attached,  condemned,  and  sold  under  their  judgments, 
without  other  than  constructive  notice  to  the  non-resident  owners 
of  them,  in  order  that  these  courts  may  do  justice  to  their  own 
citizens,  or  even  to  alien  friends,  properly  applying  to  them  for 
relief.  Here,  too,  necessity  requires  the  courts  to  dispense  with 
personal  notice,  in  order  to  give  effect  to  their  judicial  orders; 
since  otherwise,  the  state  might  be  full  of  the  property  of  non- 
residents and  aliens,  applicable  to  all  purposes  except  the  com- 
manding ones  of  justice.  Without  doubt,  in  these  and  other  like 
cases,  the  general  law  in  dispensing  with  personal  notice  from 
necessity,  requires  some  fair  approximation  to  it,  by  representa- 
tion, substitution,  or  at  least  such  publicity,  as  under  the  circum- 
stances, is  proper  and  possible,  or  the  proceeding  will  be  regarded 
as  a  fraud  upon  the  rights  of  the  absent  and  unprotected, — a  rob- 
bery under  the  forms  of  law,  and  so  a  fraud  upon  law  itself.  It 
is,  however,  a  very  narrow  view  of  the  general  law,  it  is  to  form 
a  very  low  estimate  of  the  wisdom  which  directs  its  administra- 
tion, to  suppose,  that  when  it  can  do  justice  to  those  within  its 
jurisdiction  and  entitled  to  its  aid  only  by  dispensing  with  personal 
notice  to  those  out  of  it,  and  substituting  instead  what  is  possible 
for  notice  to  them,  it  is  powerless  to  do  this,  and  so,  powerless  to 
help  its  own  citizens  or  strangers  within  its  gates,  however  strong 
may  be  their  claims  or  their  necessities.  Such  a  sacrifice  of  sub- 
stance to  shadows,  of  the  purposes  to  the  forms  of  justice,  might 
mark  the  ordinances  of  a  petty  municipality,  but  could  hardly  be 
supposed  to  characterize  the  system  of  general  law. 

Xow,  marriage,  in  the  sense  in  which  it  is  dealt  with  by  a 
decree  of  divorce,  is  not  a  contract,  but  one  of  fhe  domestic  rela- 
tions. In  strictness  though  formed  by  contract,  it  signifies  the 
relation  of  husband  and  wife,  deriving  both  its  rights  and  duties 
from  a  source  higher  than  any  contract  of  which  the  parties  are 
capable,  and  as  to  these,  uncontrollable  by  any  contract  which  they 
can  make.  When  formed,  this  relation  is  no  more  a  contract 
than  "fatherhood"  or  "sonship"'  is  a  contract.  It  is  no  more  a 
contract  than  serfdom,  slavery,  or  apprenticeship  are  contracts, 


202  PRIVATE    INTERNATIONAL   LAW.' 

the  latter  of  which  it  resembles  in  this,  that  it  is  formed  by  con- 
tract. To  this  relation  there  are  two  parties,  as  to  the  others,  two 
or  more,  interested  without  doubt  in  the  existence  of  the  relation, 
and  so  interested  in  its  dissolution.  These  parties  are  placed  by 
the  relation  in  a  certain  relative  state  or  condition,  under  the  law, 
as  are  parents  and  children,  masters  and  servants ;  and  as  every 
nation  and  state  has  an  exclusive  sovereignty  and  jurisdiction 
within  its  own  territory,  so  it  has  exclusively  the  right  to  deter- 
mine the  domestic  and  social  condition  of  the  persons  domiciled 
within  that  territory.  It  may,  except  so  far  as  checked  by  consti- 
tution, or  treaty,  create  by  law  new  rights  in,  or  impose  new  duties 
upon,  the  parties  to  these  relations,  or  lessen  both  rights  and  du- 
ties, or  abrogate  them,  and  so  the  legal  obligation  of  the  relation 
which  involves  them,  altogether.  This  it  may  do,  with  the  ex- 
ception above  stated,  as  to  some  relations,  by  lazv,  when  it  wills ; 
declaring  that  the  legal  relation,  of  master  and  slave,  for  instance, 
shall  cease  to  exist  within  its  jurisdiction,  or  for  what  causes  or 
breaches  of  duty  in  the  relation,  this,  or  the  legal  relation  of  hus- 
band and  wife,  or  of  parent  and  child,  may  be  restricted  in  their 
rights  and  duties  or  altogether  dissolved  through  the  judicial  in- 
tervention of  its  courts.  The  right  to  govern  and  control  persons 
and  things  within  the  state,  supposes  the  right,  in  a  just  and 
proper  manner,  to  fix  or  alter  the  status  of  the  one,  and  to  regu- 
late and  control  the  disposition  of  the  other ;  nor,  is  this  sovereign 
power  over  persons  and  things  lawfully  domiciled  and  placed 
within  the  jurisdiction  of  the  state  diminished  by  the  fact  that 
there  are  other  parties  interested  through  some  relation,  in  the 
status  of  these  persons,  or  by  some  claim  or  right,  in  those  things, 
who  is  out  of  the  jurisdiction,  and  cannot  be  reached  by  its  proc- 
ess. No  one  doubts  this,  as  a  matter  of  general  law,  with  regard 
to  the  other  domestic  relations,  and  what  special  reason  is  there 
to  doubt  it,  as  to  the  relation  of  husband  and  wife?  The  slave 
who  flees  from  Virginia  to  Canada — no  treaty  obliging  his  resto- 
ration— or  who  is  brought  by  his  master  thence  to  a  free  state  of 
the  Union — no  constitutional  provision  enforcing  his  return — 
finds  his  status  before  the  law  in  the  new  jurisdiction  he  has  en- 
tered, changed  at  once ;  and  no  one  dreams  that  this  result  of  a 


FOREIGN   DIVORCE.  203 

new  domicil  and  the  new  laws  of  it,  is  less  legally  certain  and 
proper  as  a  matter  of  general  law,  because  the  master  is  out  of 
the  new  jurisdiction  of  his  slave,  and  is  not,  or  cannot  be  cited  to 
appear  and  attend  to  some  formal  ceremony  of  emancipation.  It 
is  true  that  slavery  is  a  partial  and  peculiar  institution,  not  gen- 
erally recognized  by  the  policy  of  civilized  nations ;  whereas  mar- 
riage, in  some  form,  is  coextensive  with  the  race,  and,  as  a  rela- 
tion, is  nowhere  so  restrictive  and  so  binding  in  its  obligations  as 
amongst  the  most  truly  civilized  portions  of  it.  Yet  each  nation 
and  state  has  its  peculiar  law  and  policy  as  to  the  mode  of  form- 
ing, and  the  mode  and  causes  for  judicially  dissolving  this  last 
relation,  according  to  its  right;  and  all  that  other  states  or  na- 
tions, under  the  general  law  which  pervades  all  Christendom  can 
properly  demand  is,  that  in  the  exercise  of  its  clear  right  in  this 
last  respect  as  to  its  own  citizens  or  subjects,  it  should  pay  all,  and 
no  more  attention,  than  is  practicable  to  the  competing  rights  and 
interests  of  their  citizens  and  subjects.  It  should  give  to  non- 
residents and  foreigners,  parties  to  such  a  relation  of  general  legal 
sanctity,  as  to  persons  of  the  like  description  interested  in  prop- 
erty within  its  territory,  the  rights  to  which  are  also  everywhere 
recognized,  at  least  such  notice  by  publicity  before  it  proceeds 
to  judicial  action,  as  can,  under  such  circumstances,  be  given  con- 
sistently with  any  judicial  action  at  all,  efficient  for  the  purposes 
of  justice.  To  say  that  the  general  law  inexorably  demands 
personal  notice  in  order  to  such  action,  or,  still  worse,  demands 
that  all  parties  interested  in  a  relation  or  in  property  subject  to  a 
jurisdiction  should  be  physically  within  that  jurisdictien,  is  to  lay 
down  a  rule  of  law  incapable  of  execution,  or  to  make  the  exe- 
cution of  laws  dependent  not  upon  the  claims  of  justice,  but  upon 
the  chance  locality,  or,  what  is  worse,  upon  the  will  of  those  most 
interested  to  defeat  it. 

It  is  very  evident,  upon  examining  the  statutes  of  the  differ- 
ent states  of  the  Union,  that  legislation  vesting  jurisdiction  for 
divorce  in  their  courts  has  followed  no  principle  of  general  law 
in  this  respect  whatsoever ;  some  statutes  making  the  jurisdiction, 
or  supposing  it,  to  depend  upon  the  place  of  the  contract,  some 
upon  the  place  of  the  delictum,  and  some,  as  in  this  state,  and  as 


204  PRIVATE    INTERNATIONAL   LAW. 

•  they  should  do,  upon  the  domicil  of  the  wronged  and  petitioning 
party.  The  courts  of  each  state  exercise,  as  they  must,  jurisdic- 
tion upon  the  principles  laid  down  for  them  by  statute ;  and  have 
very  little  occasion,  unless  called  upon  to  review  the  decree  of 
some  neighboring  state,  to  attend  to  or  consider  any  general  prin- 
ciples pertaining  to  the  subject.  Engaged  in  this  latter  task, 
they  are  very  apt  to  confound  the  statute  principles  of  jurisdic- 
tion, to  which  they  are  accustomed,  with  the  principles  of  general 
law  relating  to  it;  notwithstanding  the  latter  so  obviously  grow 
out  of  the  right  of  every  state  to  regulate,  in  some  cases  by  law, 
and  in  others  by  proper  judicial  action,  according  to  the  nature 
of  the  subject,  the  social  condition,  or  status,  as  it  is  called,  of  all 
persons  subject  to  its  jurisdiction.  A  singular  instance  of  for- 
getfulness  of  this  principle  of  "state  sovereignty"  is  afforded  by 
the  case  of  Hull  v.  Hull,  2  Strobhart's  Equity  Appeals,  174;  in 
which  the  right  of  the  state  of  Connecticut  to  dissolve  through  its 
courts  under  the  law  of  that  state,  a  marriage  there  formed  be- 
tween two  of  its  own  citizens,  upon  the  petition  of  a  wife  whose 
husband  had  deserted  her  and  her  children  and  settled  in  South 
Carolina,  constructive  notice  only  having  been  given  to  the  ab- 
sent and  absconding  husband,  was  put  upon  the  ground  that  dis- 
solution of  the  contract  of  marriage  upon  such  notice  was  part 
of  the  law  of  the  place  of  the  contract  and  so  part  of  the  contract 
itself.  The  courts  of  that  state,  it  seems,  whilst  forgetting  the 
state  rights  of  their  northern  sister,  strenuously  insist  upon  the 
rights  of  their  own ;  holding,  according  to  the  exploded  notion  of 
Lolley's  case,  or  rather  of  McArthy  v.  McArthy,  that  a  South 
Carolina  marriage  cannot  be  dissolved  out  of  the  state  of  South 
Carolina,  although  any  other  may.  In  Irby  v.  Wilson,  1  Dev.  & 
Bat.  Eq.  R.  568,  576,  under  similar  circumstances,  except  that  in 
this  case  the  wife  was  the  deserting,  and  the  husband  the  petition- 
ing party,  the  supreme  court  of  North  Carolina  held  that  a  Ten- 
nessee divorce  was  void,  upon  the  ground  hinted  at  in  Lyon  v. 
Lyon,  sup.,  to  wit,  that  such  a  proceeding  being  between  parties, 
and  the  wife  having  been  constructively  notified  only,  although 
such  notice  was  all  that  was  possible,  the  courts  of  Tennessee 
could  not  alter  by  way  of  redress  the  status  of  one  of  its  own  citi- 


FOREIGN   DIVORCE.  205 

zens,  become  burdensome  to  him  by  the  alleged  causeless  and  con- 
tinued desertion  of  his  wife.  Upon  the  same  principle,  and  for 
the  same  reason,  of  course,  North  Carolina  could  not  relieve  from 
the  relation,  its  citizen,  the  wife,  although  her  husband  might 
have  compelled  her  to  flee  from  him  to  the  only  home  open  to  her 
in  that  state,  by  the  grossest  violation  of  the  duties  which  their 
relation  to  each  other  imposed ;  and  thus,  both  these  conterminous 
sovereignties  would  be  powerless  for  justice,  over  and  upon  the 
call  of  its  respective  domiciled  inhabitant.  In  Pennsylvania,  the 
jurisdiction  is  made  to  depend  upon  the  jurisdiction  over  the  of- 
fender at  the  time  of  the  offence,  {Dorsey  v.  Dirsey,  J  Watts, 
349,)  as  if  the  lex  loci  delicti  were  to  govern;  in  Louisiana,  upon 
like  jurisdiction,  unless  the  marriage  were  contracted  within  the 
state,  when,  we  suppose,  the  delictum  would  be  regarded  as  a 
breach  of  contract,  if  such  by  the  law  of  Louisiana  in  which  the 
contract  was  entered  into.  Edward  v.  Green,  9  La.  Ann  R.  317. 
Thus,  we  perceive,  that  by  some  courts  marriage  is  treated  as  a 
species  of  continuing  executory  contract  between  the  parties,  the 
obligations  of  which,  and  the  causes  and  even  modes  of  dissolv- 
ing which,  are  fixed  by  the  law  of  the  place  of  contract.  So  sa- 
credly local  is  it,  in  the  view  of  some,  that  it  cannot  be  dissolved 
but  by  the  courts  of  the  country  in  which  it  was  formed.  Others, 
perceiving,  that  though  a  contract,  it  is  one  universally  recog- 
nized, acknowledge  the  right  of  foreign  tribunals  to  act  upon  it, 
provided  that  in  doing  so,  they  govern  themselves  not  by  the  only 
law  which  they,  it  may  be  by  statute,  can  administer,  but  ascertain 
whether  it  has  been  broken,  and  so  ought  to  be  dissolved,  by  the 
law  of  the  place  of  the  contract.  Some  treat  breaches  of  the  con- 
tract of  every  degree  as  quasi  crimes,  to  be  punished  only  in  the 
place  in  which  they  were  committed,  provided  the  parties  be  then 
there  domiciled ;  and  others,  again,  qualify  this,  by  an  exception 
in  favor  of  the  tribunals  of  the  place  of  contract ;  since  there  the 
delicta  can  be  treated  as  breaches  of  the  contract,  if  such  be  the 
law  of  the  place  of  contract.  If  marriage  be  a  contract,  or  the 
breach  of  it  a  tort,  it  may  well  be  asked,  why  are  they  not  at  least 
personal  in  their  nature,  and  transitory  in  their  legal  character? 
passing  with  the  wronged  person  wherever  he  or  she  passes,  for 


206  PRIVATE   INTERNATIONAL  LAW. 

redress  by  any  tribunal  of  the  civilized  world,  which  can  obtain 
jurisdiction  of  the  person  of  the  covenant  breaker  or  trespasser? 

It  is  evident  from  such  confusion  of  decisions  and  reasons, 
no  general  principle  worth  considering  can,  by  any  process,  be 
eliminated.  Raising  ourselves  above  this  mist  of  misapplied 
learning  and  ingenuity,  and  looking  at  the  matter  simply  as  it  is, 
it  is  obvious,  that  marriage,  as  a  domestic  relation,  emerged  from 
the  contract  which  created  it,  is  known  and  recognized  as  such 
throughout  the  civilized  world ;  that  it  gives  rights,  and  imposes 
duties  and  restrictions  upon  the  parties  to  it,  affecting  their  social 
and  moral  condition,  of  the  measure  of  which  every  civilized 
state,  and  certainly  every  state  of  this  Union,  is  the  sole  judge  so 
far  as  its  own  citizens  or  subjects  are  concerned,  and  should  be 
so  deemed  by  other  civilized,  and  especially  sister,  states ;  that  a 
state  cannot  be  deprived,  directly  or  indirectly,  of  its  sovereign 
power  to  regulate  the  status  of  its  own  domiciled  subjects  and 
citizens,  by  the  fact  that  the  subjects  and  citizens  of  other  states, 
as  related  to  them,  are  interested  in  that  status,  and  in  such  a 
matter  has  a  right,  under  the  general  law,  judicially  to  deal  with 
and  modify  or  dissolve  this  relation,  binding  both  parties  to  it  by 
the  decree,  by  virtue  of  its  inherent  power  over  its  own  citizens 
and  subjects,  and  to  enable  it  to  answer  their  obligatory  demands 
for  justice;  and  finally,  that  in  the  exercise  of  this  judicial  power, 
and  in  order  to  the  validity  of  a  decree  of  divorce,  whether  a 
mensa  et  thoro  or  a  vinculo  matrimonii,  the  general  law  does  not 
deprive  a  state  of  its  proper  jurisdiction  over  the  condition  of  its 
own  citizens,  because  non-residents,  foreigners,  or  domiciled  in- 
habitants of  other  states  have  not  or  will  not  become,  and  cannot 
be  made  to  become,  personally  subject  to  the  jurisdiction  of  its 
courts ;  but  upon  the  most  familiar  principles,  and  as  illustrated 
by  the  most  familiar  analogies  of  general  law,  its  courts  may  and 
can  act  conclusively  in  such  a  matter  upon  the  rights  and  interests 
of  such  persons,  giving  to  them  such  notice,  actual  or  constructive, 
as  the  nature  of  the  case  admits  of,  and  the  practice  of  courts  in 
similar  cases  sanctions ;  the  purpose  of  such  notice  being  to  ban- 
ish the  idea  of  secrecy  and  fraud  in  the  proceeding  by  inviting 
publicity  to  it,  as  well  as  to  give  to  persons  out  of  the  jurisdiction 


FOREIGN   DIVORCE.  207 

of  the  court,  every  chance  possible,  under  the  circumstances,  of 
appearing  to  the  proceeding,  and  defending,  if  they  will,  their 
own  rights  and  interests  involved  in  it. 

These  views  are  supported  by  the  practice  of  the  states  of 
Connecticut  and  Tennessee  called  in  question,  as  we  have  seen,  by 
the  courts  of  South  and  North  Carolina,  as  probably  by  the  prac- 
tice of  many  other  states,  and  certainly  by  the  long  continued 
practice  of  our  own.  They  are  sanctioned  by  the  well-considered 
decision  of  Harding  v.  Alden,  9  Greenl.  R.  140,  and  by  that 
learned  jurisconsult,  the  late  Chancellor  Kent,  in  his  note  on  that 
case,  2  Kent's  Com.  no,  n.  b.  4th  ed.  They  are  otherwise  best 
sustained  by  authority.  Tolen  v.  Tolen,  2  Blackf.  407.  Guem- 
bell  v.  Gnembell,  Wright,  286.  Cooper  v.  Cooper,  7  Ohio,  238. 
Mansfield  v.  Mclntyre,  10  ib.  27.  Harrison  v.  Harrison,  19  Ala- 
bama, 499.  Hare  v.  Hare,  10  Texas,  355.  See  also  the  whole 
subject  discussed  in  Bishop  on  Marriage  and  Divorce,  passim,  and 
especially  in  ch.  34  of  that  valuable  work. 

It  may  be  added,  that  the  distressing  consequences  which 
otherwise  might  arise  from  the  conflict  of  laws  and  decisions  upon 
this  interesting  and  important  subject  have  been  wisely  provided 
against,  by  a  clause  of  the  constitution  of  the  United  States,  and 
can  find  a  remedy  under  it  in  the  supreme  court  of  the  United 
States,  as  the  court  of  last  resort,  in  cases  demanding  its  applica- 
tion. By  art.  4,  sect.  1,  of  the  constitution  of  the  United  States, 
"Full  faith  and  credit  shall  be  given  in  each  state  to  the  public 
acts,  records,  and  judicial  proceedings  of  every  other  state."  As 
this  has  been  construed  by  the  highest  authority  to  give  in  every 
other  state  the  same  effect  to  a  judgment  or  decree  of  a  state  court 
that  it  has  in  that  in  which  it  is  rendered  or  passed,  no  serious  in- 
jury can  be  done  to  the  proper  subjects  of  our  judicial  administra- 
tion by  the  errors  and  mistakes  of  other  courts  with  regard  to  our 
jurisdiction.  From  the  nature  of  the  topics  constantly  agitated 
before  it,  no  court  in  the  world  is  better  qualified  to  deal  with 
questions  of  general  law,  and  especially  with  one  involving,  as 
that  before  us  does,  the  rights  of  a  state  of  the  Union;  and  under 
the  trained  qualifications  of  the  members  of  the  court,  as  well  as 
the  constitutional  power  of  the  court  itself,  those  properly  subject 


208  PRIVATE   INTERNATIONAL   LAW. 

to  our  judgments  and  decrees  in  this  respect,  as  in  all  others,  are 
quite  safe,  having  honestly  obtained  them,  in  acting  by  virtue  of 
them. 

Although,  as  a  general  doctrine,  the  domicil  of  the  husband 
is,  by  law,  that  of  the  wife ;  yet  when  he  commits  an  offence,  or  is 
guilty  of  such  dereliction  of  duty  in  the  relation,  as  entitles  her  to 
have  it  either  partially  or  totally  dissolved,  she  not  only  may,  but 
must,  to  avoid  condonation,  establish  a  separate  domicil  of  her 
own.  This  she  may  establish,  nay,  when  deserted  or  compelled 
to  leave  her  husband,  necessity  frequently  compels  her  to  estab- 
lish, in  a  different  judicial  or  state  jurisdiction  than  that  of  her 
husband,  according  to  the  residence  of  her  family  or  friends. 
Under  such  circumstances  she  gains,  and  is  entitled  to  gain,  for 
the  purposes  of  jurisdiction,  a  domicil  of  her  own;  and  especially, 
if  a  native  of  the  state  to  which  she  flies  for  refuge,  is,  upon  fa- 
miliar principles,  readily  redintegrated  in  her  old  domicil.  This 
is  the  well-settled  doctrine  of  law  upon  the  subject,  (Bishop  on 
Marriage  and  Divorce,  §§  728-730  incl.  and  cases  cited,)  and  has 
by  no  court  been  more  ably  vindicated  than  by  the  supreme  court 
of  Massachusetts.     Harteau  v.  Harteau,  14  Pick.  181,  185. 

A  more  proper  case  for  the  application  in  favor  of  a  petitioner 
for  divorce  of  the  foregoing  principles  relating  to  the  jurisdiction 
of  the  court  over  her  case,  and  to  the  question  of  her  domicil  in 
this  state,  can  hardly  be  imagined,  than  the  case  at  bar.  The  pe- 
titioner is  the  daughter  of  a  native  of  this  state,  who,  though  for- 
merly resident  in  Boston,  has  for  many  years  past  been  domiciled 
in  his  native  place,  Little  Compton.  Whilst  at  school,  the  peti- 
tioner became  acquainted  with  an  Englishman  of  the  name  of  Dit- 
son,  and,  in  1842,  married  him,  without  the  knowledge  or  consent 
of  her  parents,  in  New  York.  Immediately  after  marriage  the 
couple  went  to  Europe,  and  from  thence  to  Cuba,  where  they 
lived  together  several  years.  Upon  their  return  to  this  country, 
she  being  in  a  feeble  and  emaciated  condition,  he  deserted  her  for 
the  first  time  in  Boston,  and  was  absent  in  Europe,  without  leav- 
ing any  provision  for  her,  for  about  two  years.  Upon  his  return, 
they  appear  to  have  lived  together  again;  he,  however,  giving 
every  indication  of  a  morose  as  well  as  inattentive  husband.     Af- 


FOREIGN   DIVORCE.  209 

ter  a  short  time,  he  deserted  her  again  in  Boston,  declaring,  upon 
his  leaving  it  for  Europe  that  he  cared  nothing  about  it,  or  any 
person  in  it,  pointing,  as  the  testimony  is  put  to  us,  to  his  unfortu- 
nate wife.  He  has  been  absent  from  her  now  between  three  and 
fcur  years,  without  communicating  with  her,  or  providing,  though 
of  sufficient  ability,  any  thing  for  her  support,  nor  does  she  know 
where  he  is,  except  that  he  has  gone  to  Europe.  In  the  mean 
time,  deserted  as  she  was,  she  was  obliged  to  return  to  her  father's 
house  in  Little  Compton ;  where,  during  this  time,  supported  by 
him  or  by  her  own  exertions,  she  has  resided,  with  the  exception 
of  about  three  months  passed  by  her  in  Newport,  Rhode  Island. 
For  this  desertjon  and  neglect  to  provide  for  hei ,  the  proof,  ex 
parte  it  is  true,  but  coming  from  respectable  sources,  finds  no  ex- 
cuse in  her  conduct,  which,  according  to  it,  has  always,  so  far  as 
known,  been  that  of  a  dutiful  and  faithful  wife.  We  reserved 
this  case,  the  first  on  the  circuit  which  presented  the  question  be- 
fore discussed  for  consideration,  it  being  admitted  that  the  hus- 
band of  the  petitioner  had  never  resided  with  her  in  this  state, 
or  even  as  the  proof  showed,  been  within  its  borders,  and  was 
now  abroad  in  parts  unknown,  and  was  not,  of  course,  personally 
served,  because  under  such  circumstances  he  could  not  be  per- 
sonally served  with  the  ordinary  citation  issued  by  us  to  a  resident 
defendant  to  such  a  petition.  Under  the  authorized  rule  of  this 
court,  in  regard  to  constructive  notice  to  an  absent  defendant  to 
a  petition  for  divorce,  upon  affidavit  of  the  facts,  six  weeks'  notice 
of  the  pendency  of  this  petition  was  given,  by  publishing  the  same 
for  the  space  of  six  weeks  next  before  the  sitting  of  the  court  at 
this  term ;  and  it  is  evide.it  that  the  husband  of  this  lady  knows, 
as  from  his  conduct  it  is  apparent  that  he  cares,  nothing  about  this 
proceeding.  Whatever  was  the  former  domicil  of  the  petitioner, 
we  are  satisfied  that  she  is,  and  has,  for  upwards  of  the  last  three 
years,  been  a  domiciled  citizen  of  Rhode  Island, — her  only  home, 
in  the  house  of  her  father ;  and  that,  as  such  citizen,  and  upon 
such  notice,  we  have  power  and  jurisdiction  over  her  c.se,  and 
to  change  her  condition  from  that  of  a  married  to  that  of  a  single 
woman,  granting  to  her  the  relief,  which,  under  like  circum- 
stances, the  law  and  policy  of  Rhode  Island  accords  to  all  its  citi- 


210  PRIVATE    INTERNATIONAL   LAW. 

zens.  Let  a  decree  be  entered  divorcing  Mary  Ann  Ditson  from 
George  L.  Ditson,  and  annulling  the  bond  of  matrimony  now 
subsisting  between  them;  and  that  the  name  of  the  said  Mary 
Ann  Ditson  be  changed  to,  and  she  be  hereafter  known  and  called 
by  the  name  of  Mary  Ann  Simmons,  according  to  the  prayer  of 
her  petition. 


ROTH  v.  ROTH,  104  ILL.  35,    1882). 

Appeal  from  the  Superior  Court  of  Cook  county;  the  Hon. 
John  A.  Jameson,  Judge,  presiding. 

The  record  in  this  case  shows  that  John  George  Roth,  a  sub- 
ject of  the  kingdom  of  Wurtemberg,  came  to  this  country,  and 
settled  in  Chicago  at  an  early  day,  and  there  accumulated  a  large 
amount  of  property,  consisting  chiefly  of  real  estate,  which  is  the 
subject  of  controversy  in  this  suit;  that  in  1855  he  married,  in 
Chicago,  Madelaine  Moser,  a  native  and  subject  of  France,  who 
had  a  short  time  before  accompanied  him  on  a  return  visit  from 
that  country  to  this;  that  in  1856  they  returned  to  Europe,  and 
on  their  arrival  in  that  country,  or  shortly  afterwards,  owing  to 
certain  difficulties  and  misunderstandings,  a  separation  took  place, 
resulting  in  her  returning  to  reside  with  her  father,  in  Alsace, 
France,  her  former  domicile  and  residence,  and  in  his  establish- 
ing a  new  residence  in  Schomdorf,  in  the  said  kingdom  of  Wur- 
temberg, where  he  continued  to  reside  until  the  time  of  his  djath, 
which  occurred  on  the  12th  of  July,  1876;  that  in  1862  his  wife 
returned  to  this  country  and  instituted  proceedings  for  a  divorce, 
where  she  was  shortly  afterwards  followed  by  her  husband,  and 
through  his  influence  induced  to  abandon  the  divorce  suit  and  re- 
turn with  him  to  Schorndorf,  where  they  again  resumed  marital 
relations,  which  were  continued  until  October,  1870,  when  he 
commenced  legal  proceedings  in  the  proper  court,  at  their  domi- 
cile in  Wurtemberg,  to  procure  a  decree  of  nullity  of  their  mar- 
riage on  the  ground  it  had  been  entered  into  on  his  part  in  viola- 
tion of  the  laws  of  the  kingdom  of  Wurtemberg,  of  which  he  was 
a*  that  time  a  subject ;  that  on  the  24th  of  April,  1873,  the  cause 
was  brought  to  a  final  hearing,  both  parties  being  present,  and 


FOREIGN   DIVORCE.  211 

represented  by  their  respective  counsel,  resulting  in  a  decree  de- 
claring the  marriage  a  nullity,  on  the  ground  just  stated;  tiiat  the 
court  in  which  the  decree  was  rendered  had  jurisdiction,  both  of 
the  parties  and  the  subject  matter  of  the  suit,  and  under  the  laws 
of  Wurtemberg  had  full  power  and  competent  authority  to  enter 
the  decree ;  that  on  the  9th  of  September  following,  in  considera- 
tion of  $8000  in  United  States  bonds  paid  to  her  by  Roth,  Made- 
laine,  his  former  wife,  released  to  him  all  her  interests,  whatever 
they  might  be,  in  the  property  in  controversy;  that  on  the  27th 
of  November  following,  Roth  contracted  a  second  marriage  with 
Amalie  Staehle.  who  now  claims  the  estate  in  controversy ;  that 
after  the  marriage  of  Amahe  and  Roth,  on  the  28th  of  March, 
1874,  they  entered  into  an  agreement  known  to  laws  of  Wurtem- 
berg as  a  "marriage  and  inheritance  contract,"  by  which  it  was 
provided  thev  were  to  hold  the  property  belonging  to  them  re- 
spectively during  their  joint  lives  as  common  property,  with 
the  right  of  survivorship  to  the  longer  liver,  subject  to  the  pay- 
ment of  their  debts,  the  education  and  marriage  portions  of  their 
children,  and  to  the  payment  by  her,  in  the  event  she  survived 
him,  of  certain  legacies  to  his  relations,  amounting  altogether  to 
80,000  florins,  which  contract  was  duly  approved  and  confirmed 
by  the  proper  court  of  that  country ;  that  immediately  before  his 
death,  and  with  a  view  of  enabling  his  wife  to  carry  out  the  con- 
tract just  mentioned,  Roth  conveyed,  or  attempted  to  convey,  the 
property  in  controversy  to  her  brother,  Albert  Staehle,  but  that 
whatever  interest  passed  by  it  was  subsequently  reconveyed  by 
him  to  Amalie ;  that  after  Roth's  death,  on  the  25th  of  September, 
1876,  Madelaine  visited  Schorndorf,  and  while  there  spent  much 
of  her  time  with  Amalie,  and  accepted  of  her  various  presents, 
etc. ;  that  on  the  26th  of  the  same  month,  Madelaine,  in  considera- 
tion of  10,000  marks,  released  to  Amalie  all  claims  to  and  upon 
her  late  husband's  estate,  and  on  the  3d  of  October  following, 
executed  to  her  a  deed  to  the  property  in  controversy ;  that  Roth, 
at  the  time  of  his  death,  left  no  child  or  children,  or  descendants 
thereof. 

Under  these  circumstances,  in  1878,  the  present  bill  was  filed 
by  Madelaine,  in  the    Superior  Court    of  Cook    county,  against 


212  PRIVATE   INTERNATIONAL  LAW. 

Amalie  and  the  heirs  at  law  of  Roth,  in  and  by  which  she  claims 
that  the  marriage  between  her  and  Roth  was  a  legal  and  valid 
marriage;  that  the  decree  of  the  Wurtemberg  court,  and  all  the 
proceedings  upon  which  it  is  based,  were  and  are  null  and  void, 
and  that  she  is  therefore  the  lawful  widow  and  heir  of  her  said 
husband,  and  as  such  entitled  to  a  partition  and  division  of  his 
estate,  under  the  statute.  Amalie  answered  the  bill,  and  also  filed 
a  cioss-bill,  setting  up  the  facts  above  recited,  and  relying  on  them 
tq  establish  her  rights,  as  the  survivor  and  lawful  widow  of  Roth, 
to  the  property  in  dispute.  A  cross-bill  was  also  filed  by  the  heirs 
of  Roth,  setting  up  their  rights  in  the  premises.  The  court  found 
the  equities  with  Amalie  upon  her  cross-bill,  and  entered  a  decree 
dismissing  the  original  bill,  and  directing  the  heirs  of  Roth  to  be 
paid  the  amount  due  them  under  the  "marriage  and  inheritance 
contract."  That  decree  has  been  performed  as  to  the  heirs  of 
Roth,  and  Madelaine  Roth  alone  brings  the  case  by  appeal  to  this 
court  for  review. 

Mr.  C.  M.  Harris,  for  the  appellant : 

Penal  laws  are  strictly  local,  and  those  of  one  country  can 
not  be  regarded  in  another.  Folliott  v.  Ogden,  i  H.  Bl.  135; 
Ogden  v.  Folliott,  3  Term,  733;  Warrender  v.  Warrender,  3  CI. 
&  Fin.  538;  Commonwealth  ,v.  Green,  17  ,Mass.  548;  Story's 
Const.  16,  sees.  91,  104;  Dicey  on  Domicile,  160. 

Statutes  restricting  the  liberty  of  marriage  are  penal.  Hodg- 
kinson  v.  Wilkheir,  1  Hagg.  Const.  262. 

That  the  validity  of  a  marriage  depends  on  the  law  of  the 
country  where  it  is  celebrated,  see  Bishop  on  Marriage  and  Di- 
vorce, sec.  371 ;  Dairy  m  pie  v.  Dairy m pie,  2  Hagg.  Con.  54,  4  Eng. 
Ecc.  485;  Ruding  v.  Smith,  id.  371,  id.  551;  Middleton  v.  Jan- 
verin,  id.  437,  id.  582 ;  Scrimshire  v.  Scrimshire,  id.  385,  id.  565. 

A  foreign  decree  has  no  extra-territorial  force,  save  through 
comity.  Woolsey  on  International  Law,  sec.  75 ;  Story's  Conflict 
of  Laws,  603-607. 

If  it  conflicts  with  reason  and  justice,  or  if  the  court  has 
proceeded  upon  false  premises  or  inadequate  reasons,  or  mistake 
of  local  or  foreign  law,  it  will  not  be  enforced  elsewhere.  Simonin 
v.  Mallac,  2  Sw.  &  Tr.  67;  Simpson  v.  Fogo,  32  L.  J.  Ch.  249; 


FOREIGN    DIVORCE.  213 

Parsons  on  Contracts,  606;  Wharton  on  International  Law,  747; 
Don  v.  Lipman,  5  CI.  &  Fin.  20 ;  Novelli  v.  Rossi,  2  B.  &  Ad.  757 ; 
Reimers  v.  Druce,  23  Beav.  145. 

Such  decree  will  not  bj  enforced  when  it  will  directly  or  in- 
directly give  effect  to  an  act  which  infers  a  scandal  on  society  or  a 
breach  of  national  morals  and  decency,  or  when  it  would  be  de- 
testable or  pernicious,  as,  the  enforcement  of  a  contract  with  a 
prostitute  for  her  prostitution,  although  valid  when  made.  Birth- 
whistle  v.  Vardill,  5  B.  &  C.  455 ;  Fenton  v.  Livingston,  3  Macq. 
537;  Bank  of  Augusta  v.  Earl,  13  Pet.  518;  Greenwood  v.  Cartes, 

6  Mass.  358. 

A  marriage  settlement  made  in  a  foreign  country  does  not 
of  itself  affect  real  estate  here,  and  can,  if  at  all,  only  by  suit  under 
the  laws  of  this  State.     73  111.  285 ;  15  La.  Ann.  317. 

Executory  contracts  do  not  transmit  title.  Olney  v.  Hozve, 
89  111.  556.  .    ' 

An  executory  agreement,  or  imperfect  conveyance  upon  a 
merely  voluntary  consideration,  will  not  be  enforced  or  aided  in 
equity.  64  111.  548;  1  White  &  Tudor's  Leading  Cases,  420,  427; 
1  Select  Cases,  (Ala.)  535. 

Messrs.  Rosenthal  &  Pence,  for  the  appellee  Amalie  S. 
Roth: 

Where  a  contract  to  marry  is  executed,  its  nature  as  a  con- 
tract is  merged  in  the  higher  nature  of  a  status,  and  the  contract 
no  longer  exists.  This  status  travels  with  the  spouses  wherever 
they  go,  and  becomes  subject  to  the  laws  of  the  State  where  the 
parties  may  become  domiciled,  and  is  there  under  control  of  the 
sovereign  power.  1  Bishop  on  Marriage  and  Divorce,  sees.  3, 
667;  Story's  Conflict  of  Laws,  sees.  228-230;  Barber  v.  Root,  10 
Mass.  265  ;  Strader  v.  Graham,  10  How.  82 ;  Maguire  v.  Maguire, 

7  Dana,  181 ;  Cheever  v.  Wilson,  9  Wall.  108;  Harrison  v.  Harri- 
son, 19  Ala.  499;  Harvie  v.  Farnie,  L.  R.  5  P.  D.  153;  43  L.  T. 

R.  738. 

It  is  clearly  competent  for  every  nation  to  say  that  certain 
marriages  of  its  subjects  or  citizens  shall  be  invalid,  wherever 
they  may  be  contracted.  Story's  Conflict  of  Laws,  sees.  H4d, 
117;  Foote's  Priv.  Int.  Jur.  273;  1  Burge  on  Colonial  Law,  188, 


214  PRIVATE   INTERNATIONAL   LAW. 

195,  196;  Wharton's  Conflict  of  Laws,  sec.  161;  Lawrence's 
Wheaton,  172;  4  Phillimore's  International  Law,  29;  Piggott's 
Foreign  Judgments,  167,  168;  Maxwell  on  Stat.  119;  Fenton  v. 
Livingstone,  5  Jur.  N.  S.  1183;  3  Macq.  497;  Sussex  Peerage 
Case,  1 1  CI.  &  F.  85 ;  Sottomayer  v.  De  Barros  L.  R.  3  P.  Div.  5 ; 
Mette  v.  Mette,  1  Sw.  &  Tr.  416;  Brook  v.  Brook,  3  id.  481 ;  War- 
render  v.  Warrender,  2  CI.  &  F.  529. 

If  an  incapacity  to  marry  exists  in  a  State  of  which  the  par- 
ties are  citizens  or  subjects,  and  if  the  marriage  of  persons  pos- 
sessing such  incapacity  is  declared  by  the  statute  of  their  State  to 
be  null  and  void  wherever  the  same  may  be  contracted,  and  if  such 
persons  go  to  another  State  where  such  incapacity  does  not  exist, 
and  there  ma/ry,  and  then  return  to  their  own  State,  such  mar- 
riage will  be  held  null  and  void  in  the  latter  State.  Kinney's 
Case,  30  Gratt.  858;  Williams  v.  Oatis,  5  Ired.  5^5 ;  State  v.  Ken- 
nedy, 76  N.  C.  251 ;  Dupree  v.  Boulard,  10  La.  Ann.  411 ;  Com- 
monivealth  v.  Lane,  113  Mass.  458;  Commonwealth  v.  Hunt,  4 
Cush.  49;  Medway  v.  Needham,  16  Mass.  157. 

Where,  by  the  positive  law,  consent  of  government  is  re- 
quired to  marry,  such  want  of  consent  will  invalidate  the  mar- 
riage. Sussex  Peerage  case,  11  CI.  &  F.  S5 ;  Sottomayer  v.  De 
Barros,  L.  R.  3  P.  Div.  5 ;  Fenton  v.  Livingstone,  5  Jur.  N.  S. 
1 183;  Story's  Conflict  of  Laws,  sec.  H4d. 

Every  country  must  be  permitted  to  judge  of  the  policy  of 
its  own  law,  and  to  enforce  the  same.  This  is  a  maxim  of  inter- 
national law.  1  Bishop  on  Marriage  and  Divorce,  sec.  368; 
Story's  Conflict  of  Laws,  sees.  18,  19,  21,  22,  23,  25;  Savigny, 
note  a,  38,  40;  Bank  of  Augusta  v.  Earle,  13  Pet.  518;  Cin.  Mu- 
tual H.  A.  v.  Rosenthal,  55  111.  91 ;  Wharton's  Conflict  of  Laws, 
(2d  ed.)  sees.  65,  207. 

The  status  of  all  persons  is  controlled  bv  the  law  of  the  nation 
to  which  they  belong,  and  in  which  they  are  domiciled.  West- 
lake's  Private  International  Law,  p.  24,  et  seq.  80;  Story's  Con- 
flict of  Laws,  sees.  223,  224,  228-230 ;  Wharton's  Conflict  of  Laws, 
sees.  21 1,  213,  220,  800;  1  Bishop  on  Marrii  ge  and  Divorce,  sees. 
367-369;  Guthrie's  Savigny's  Private    International  Law,  248; 


FOREIGN    DIVORCE.  215 

2  Kent,  107,  note ;  Hubback  on  Succ.  335 ;  Bigelow  on  Estoppel, 
159  160;  Piggott  on  Foreign  Judgments,  167,  168;  Shaw  v. 
Uould,  L.  R.  3  H.  L.  56;  Kinnier  v.  Kinnier,  45  N.  Y.  535 ;  Hunt 
v.  Hunt,  72  id.  228;  Barber  v.  Root,  10  Mass.  260;  Cheever  v. 
Wilson,  9  Wall.  108;  Strader  v.  Graham,  10  How.  82;  Dorsey  v. 
Dorscy,  7  Watts,  349 ;  Ditson  v.  Ditson,  4  R.  I.  87 ;  Udny  v. 
Udny,  L.  R.  1  Scotcb  App.  441. 

Mr.  Justice  Mulkey  delivered  the  opinion  of  the  Court: 

In  the  view  we  take  of  this  case  we  do  not  deem  it  necessary 
to  follow  counsel  in  the  wide  range  their  exhaustive  and  elabo- 
rate arguments  have  taken,  but  shall  confine  ourselves  to  one  or 
two  of  the  topics  discussed  in  the  briefs,  which  we  regard  as  con- 
clusive of  the  controversy,  whatever  may  be  our  views  with  re- 
spect to  the  other  issues  in  the  case. 

So  far  as  the  marriage  between  Roth  and  Madelaine  Moser 
is  concerned,*  we  have  no  hesitancy  in  saying  that  for  all  pur- 
poses, in  this  State,  it  was  a  legal  and  valid  marriage,  notwith- 
standing Roth,  at  the  time,  was  a  subject  of  the  kingdom  of  Wur- 
temberg,  and  had  not  obtained  a  license  authorizing  such  mar- 
riage from  the  sovereign  of  that  kingdom,  ac  required  by  the  laws 
thereof.  As  both  the  parties  were  domiciled  here  at  the  time  of 
its  celebration,  it  is  not  important  to  determine  whether  the  valid- 
ity of  a  marriage  depends  upon  the  lex  domicilii  or  the  lex  loci 
contractus,  for  whatever  conclusion  might  be  reached  upon  that 
question,  the  result  would  be  the  same,  so  far  as  this  case  is  con- 
cerned. Both  laws  being  identical,  if  the  marriage  was  in  con- 
formity with  either  it  must  necessarily  have  been  with  the  other 
also,  and  as  it  seems  to  have  been  solemnized  in  strict  conformity 
with  our  statute  regulating  the  subject,  and  as  the  parties  were 
manifestly  competent,  under  our  own  laws,  to  contract  the  rela- 
tion, it  follows,  as  before  stated,  the  marriage  was  valid  and  bind- 
ing. 

While  this  marriage  was  clearly  valid  here  for  all  purposes 
whatsoever,  it  does  not  follow  that  upon  the  return  of  the  parties 
to  the  country  of  their  nativity,  and  of  which  they  were  still  sub- 
jects, it  would  or  ought  to  be  held  equally  valid  there,  for  it  is 
clearly  settled  by  the  decided  weight  of  private  international  law, 


216  PRIVATE    INTERNATIONAL   LAW. 

so  called,  that  every  State  has  the  power  to  enact  laws  which  will 
personally  bind  its  citizens  or  subjects  when  sojourning  in  a  for- 
eign jurisdiction,  provided  such  laws  in  terms  profess  to  so  bind 
them  when  thus  circumstanced.  It  is  true,  such  laws  have  no 
extra-territorial  effect  so  as  to  authorize  their  enforcement  in  a 
foreign  country,  and  may,  therefore,  so  far  as  their  execution  is 
concerned,  be  said  to  remain  dormant  till  the  return  of  those  vio- 
lating them,  when  they  will  be  enforced  in  the  same  manner,  and 
to  the  same  extent,  as  if  their  infraction  had  occurred  within  the 
State  enacting  them.  Story  on  Conflict  of  Laws,  sees.  H4d, 
117,  244,  22;  Wharton  on  Conflict  of  Laws,  sec.  161 ;  Lawrence's 
Wheaton,  p.  172;  4  Phill.  Int.  Law,  29,  sec.  34;  Piggott  on  For- 
eign Judgments,  167,  168;  Dicey  on  Domicile,  p.  215;  1  Burge 
on  Col.  Law,  188,  195,  196;  1  Bishop  on  Marriage  and  Divorce, 
sec.  368 ;  Sussex  Peerage  case,  11  CI.  &  Fin.  85 ;  Brook  v.  Brook, 
9  H.  L.  Cases,  193 ;  Fcnton  v.  Livingstone,  3  Macq.  497 ;  Mette  v. 
Mette,  1  Sw.  &  Tr.  416;  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18; 
Commonwealth  v.  Lane,  113  Mass.  458. 

Nor  does  it  follow  the  status  or  relation  created  by  the  mar- 
riage could  only  be  annulled  by  our  own  courts,  or  that  it  could 
only  be  annulled  by  other  courts  for  such  causes  as  would  be  rec- 
ognized as  sufficient  for  that  purpose  under  our  own  laws.  When 
the  parties  returned  to  Wurtemberg  and  acquired  a  new  domicile 
there,  so  far  as  their  personal  rights  and  relations  are  concerned 
our  laws  and  government  ceased  to  have  any  power  over  them  or 
concern  with  them.  Personally  the  State  had  no  claims  on  them, 
and  they  owed  it  no  allegiar.ee  or  duty.  Barber  v.  Root,  io  Mass. 
260;  Hunt  v.  blunt,  72  N.  Y.  228;  Kinnier  v.  Kinnier,  45  id.  535; 
Chcever  v.  Wilson,  q  Wall.  108;  Ditson  v.  Ditson,  4  R.  I.  87; 
Han'cy  v.  Farnie,  L.  R.  5  P.  D.  153;  same  case  affirmed,  L.  R. 
6  P.  D.  35;  Storv  on  Conflict  of  Laws,  sees.  211,  213;  1  Bishop 
on  Marriage  and  Divorce,  sees.  367,  368 ;  Wharton  on  Conflict  of 
Laws,  sec.  211 ;  Guthrie's  Savigny  on  Private  Internat.  Law,  p. 
248.  Whether  the  kingdom  of  Wurtemberg,  on  their  return  and 
acquiring  a  new  domicile  there,  would  recognize  the  status  or  re- 
lation which  they  had  contracted  here,  depended  upon  its  own 
laws,  and  not  upon  ours.     That  kingdom,  in  1808,  adopted  an  or- 


FOREIGN   DIVORCE.  217 

dinance  or  law,  which  was  in  full  force  at  the  time  of  the  marriage 
in  Chicago,  declaring  all  such  marriages  in  a  foreign  State,  with- 
out the  license  of  the  sovereign,  absolutely  null  and  void.  It  was, 
therefore,  according  to  the  general  current  of  authority  on  the 
subject,  entirely  competent  for  the  courts  of  that  kingdom  having 
jurisdiction  of  such  matters,  to  give  effect  to  that  law  by  annull- 
ing and  setting  aside  the  marriage,  upon  a  proper  application  for 
that  purpose,  which  was  done  in  this  case,  i  Bishop  on  Mar- 
riage and  Divorce,  sees.  367,  368 ;  Story  on  Conflict  of  Laws,  sees. 
18,  19,  21-23,  25;  Wharton  on  Conflict  of  Laws,  (2d  ed.)  sec. 
207;  4  Phill.  on  Int.  Law,  sees.  3,  11,  12,  13,  16,  24,  25;  Guthrie's 
Savigny  on  Private  Int.  Law,  248. 

Ordinarily,  where  a  party,  upon  a  change  of  domicile,  goes 
into  another  State  or  country,  the  personal  status  which  he  carries 
with  him  will  be  recognized  by  the  courts  of  the  latter  country. 
This  is  certainly  the  general  rule,  but  it  is  subject  to  certain  well 
recognized  exceptions.  If,  for  instance,  such  status  has  been 
acquired,  as  in  the  present  case,  by  a  violation  of  an  express  pro- 
vision of  the  positive  law  of  the  State  in  which  its  recognition 
is  asked,  or  if  it  be  contrary  to  the  genius  and  spirit  of  its  insti- 
tutions, as  a  title  of  nobility  would  be  here,  or  if  it  is  opposed  to 
its  settled  policy,  or  to  the  good  order  and  well  being  of  society, 
or  to  public  morality  and  decency,  in  all  such  cases  the  status  would 
not  and  should  not  be  recognized  by  the  courts  of  the  latter  State. 
2  Kent,  *p.  458;  Wharton  on  Conflict  of  Laws,  (2d  ed.)  sees. 
207,  165;  Storv  on  Conflict  of  Laws,  sees.  98,  244;  4  Phillimore 
on  Int.  Law,  (ed.  1861,)  p.  529;  Brook  v.  Brook,  9  H.  L.  Cas. 
193;  Cincinnati  Mutual  Health  Ass.  v.  Rosenthal,  55  111.  91 ; 
Forbes  v.  Cochrane,  2  B.  &  C.  448 ;  Mette  v.  Mette,  1  Sw.  &  Tr. 
416;  Commonwealth  v.  Lane,  113  Mass.  458;  Van  Voorhis  v. 
Brintnall,  86  N.  Y.  18. 

Assuming  the  compromises  of  appellant  with  Amalie  and 
Roth,  respectively,  relating  to  her  interest  in  the  latter's  estate, 
were  made  by  her  in  ignorance  of  her  rights,  and  that  they  were 
effected  through  the  fraud  and  misrepresentation  of  them,  and 
others  acting-  in  concert  with  them,  as  is  claimed  by  her,  of  which 
we  express  no  opinion,  at  least  for  the  present,  it  follows  the  result 


218  PRIVATE   INTERNATIONAL   LAW. 

of  this  case  must  depend  chiefly  upon  the  legal  effect  which  must, 
under  the  circumstances  stated,  be  given  by  the  courts  of  this 
State  to  the  decree  rendered  by  the  Wurtemberg  court  annulling 
the  marriage,  and  this  we  regard  as  the  vital  question  in  the  case. 
The  general  rule  unquestionably  is,  where  it  affirmatively  appears 
the  court  of  a  foreign  state  has  jurisdiction  of  the  parties  and 
subject  matter  of  the  suit,  its  judgment  or  decree  will  be  conclu- 
sive on  the  parties,  their  legal  representatives  and  privies,  in  all 
countries  where  the  matters  litigated  are  again  drawn  in  ques- 
tion, and  this  is  particularly  true  with  respect  to  judgments  or 
decrees  affecting  the  status  of  a  person,  for  they  are  in  the  nature 
of  judgments  in  rem,  which  are  binding  on  the  whole  world. 
Wharton's  Conflict  of  Laws,  sees.  800,  801,  802,  815,  816,  817, 
822,  835;  Bigelow  on  Estoppel,  170,  178;  Freeman  on  Judgments, 
sec.  528 ;  2  Bishop  on  Marriage  and  Divorce,  sec.  755 ;  Foote  on 
Private  Int.  Jur.  473,  474;  Guthrie's  Savigny  on  Private  Int. 
Law,  sec.  373,  note  c;  Harvey  v.  Farnie,  L.  R.  5  P.  D.  153; 
Gould  v.  Croiv,  57  Mo.  200;  Rose  v.  Himely,  4  Cranch,  162; 
Hobbs  v.  Henning,  17  C.  B.  (N.  S.)  821 ;  Doglioni  v.  Crispini,  L. 
R.  1  Eng.  &  Irish  App.  301. 

The  above  rule  is  also  fully  recognized  by  this  court.  (Baker 
v.  Palmer,  83  111.  568.)  The  limitation  to  this  rule  is,  that  it  may 
be  shown  that  such  judgment  or  decree  was  obtained  by  means 
of  fraud,  or  some  gross  abuse  of  the  process  of  the  court,  or  fla- 
grant departure  from  the  ordinary  course  of  judicial  procedure, 
as,  for  instance,  that  a  party  in  interest  sat  as  a  judge  in  the  cause. 
Foote  on  Private  Int.  Jur.  456,  472;  2  Story's  Eq.  Jur.  sec.  1582; 
Piggott  on  For  Judgments,  116;  Westlake  on  Private  Int.  Law, 
(last  ed.)  sees.  309,  310;  Croivley  v.  Isaacs,  16  L.  T.  (N.  S.)  529; 
Ochsenbein  v.  Papelier,  L.  R.  8  Ch.  App.  695. 

While  it  is  claimed  by  counsel  for  appellant,  in  general  terms, 
that  the  court  rendering  the  decre*  in  question  acted  without 
jurisdiction,  and  that  the  same  was  obtained  by  fraud,  yet  we  fail 
to  discover  anything  in  the  record  to  warrant  either  of  these 
charges.  It  is  not  sufficient,  as  it  has  often  been  held  by  this 
court,  for  the  purpose  of  successfully  assailing  a  transaction  on 
the  ground  of  fraud,  to  charge  fraud  generally;  but  the  complain- 


FOREIGN   DIVORCE.  219 

ing  party  must  state  in  his  pleading,  and  prove  on  the  trial,  the 
specific  acts  or  facts  relied  on  as  establishing  fraud.  That  has 
not  been  done  in  this  case.  So  far  as  we  are  able  to  discover,  the 
trial  was  perfectly  regular,  and  conducted  with  the  utmost  fair- 
ness, and  we  see  no  ground  to  question  the  jurisdiction  of  the 
court.  The  depositions  of  persons  learned  in  the  law  of  that 
country  have  been  taken  in  this  cause,  and  they  clearly  show  the 
several  courts  through  which  that  case  passed  during  its  pen- 
dency, were,  bv  the  laws  of  that  country,  the  proper  tribunals  to 
take  cognizance  of  cases  of  that  character  in  the  manner  it  was 
done.  And  it  is  further  shown  that  both  parties  appeared  in  the 
cause,  by  themselves  and  counsel.  Hence,  as  before  stated,  we 
see  no  ground  for  questioning  the  jurisdiction  of  those  tribunals. 
We  are  of  opinion,  therefore,  the  decree  of  nullity  must  be  given 
in  the  courts  here  the  same  effect  which  would  be  given  to  it  by 
the  courts  of  the  country  in  which  it  was  rendered.  The  effect  of 
the  decree  there,  as  we  understand  it,  was  not  merely  to  establish 
conclusively  the  nullity  of  the  contract  of  marriage,  or  of  the  mar- 
riage itself,  but  also  to  annul  and  terminate  the  status  or  marital 
relation  of  the  parties  which  arises  from  a  de  facto  as  well  as  a 
de  jure  marriage,  so  as  to  leave  them  in  precisely  the  same  condi- 
tion as  if  no  marriage  had  ever  taken  place  between  them.  This 
being  the  effect  of  the  decree  there,  it  must  be  given  the  same 
effect  here.  Barber  v.  Root,  10  Mass.  260;  Ross  v.  Ross,  129  id. 
243;  Kinnier  v.  Kinnier,  45  N.  Y.  535;  Hunt  v.  Hunt,  72  id.  228; 
Harvey  v.  Farnie,  L.  R.  5  P.  D.  153;  Roach  v.  Garan,  1  Ves.  Sr. 
159;  Collington's  case,  2  Swanst.  326,  note;  2  Kent's  Com.  *p. 
107 ;  2  Bishop  on  Marriage  and  Divorce,  sec.  754 ;  1  id.  sees.  354, 
note,  355;  \viiarton  on  Conflict  of  Laws,  (2d  ed.)  sees.  1-3,  213, 
671 ;  Story  on  Conflict  of  Laws,  sees.  37,  595,  597;  4  Phill.  on  Int. 
Law,  (new  ed.)  sees.  836,  839;  Freeman  on  Judgments,  sec.  579; 
Foote  on  Private  Int.  Jur.  473,  474. 

Such,  then,  being  the  legal  operation  of  the  decree,  it  fol- 
lows that  the  appellant  was  not  at  the  time  of  Roth's  death  his 
wife,  either  de  facto  or  de  jure,  and  hence  she  is  not  his  widow, 
for  no  one  answers  that  descripf'on  who  was  oot  his  wife  at  the 
time  of  his  death,  and  consequently  she  has  no  right,  as  such,  to 


220  PRIVATE   INTERNATIONAL  LAW. 

succeed  to  his  estate.  {Hood  v.  Hood,  no  Mass.  463.)  Fcr  the 
same  reasons  it  follows  that  the  subsequent  marriage  between 
Roth  and  Amalie  was  lawful  and  valid,  and  that  relation  having 
continued  up  to  the  time  of  his  death,  it  results  that  she,  and  not 
appellant,  is  his  lawful  widow,  and  as  such  is  entitled  to  his  estate. 
It  is  true  the  "marriage  and  inheritance  contract"  did  not,  upon 
his  decease,  have  the  effect  of  clothing  her  with  legal  title  to  the 
real  estate  in  controversy,  as  his  survivor,  as  it  doubtless  would 
have  done  had  the  property  been  situated  in  the  kingdom  of  Wur- 
temberg  instead  of  here ;  for  it  is  not  competent  for  parties,  here 
or  elsewhere,  by  mere  agreement,  to  change  the  manner  of  trans- 
ferring real  property  in  this  State,  but  the  agreement  in  question, 
upon  his  decease,  operated  as  an  equitable  assignment  of  the  es- 
tate to  her,  which  was  properly  enforced  by  the  decree  in  this 
case.  Story  on  Conflict  of  Laws,  sees.  14^,  159,  184;  Westlake 
on  Private  Int.  Law,  (new  ed.)  sees.  34,  35,  205;  ibid,  (old  ed.) 
sees.  99,  371  ;  Decouche  v.  Savetier,  3  Johns.  Ch.  190;  Besse  v. 
Pellochoux,  73  111.  285. 

Having  reached  the  conclusion  stated  with  respect  to  the  de- 
cree of  nullity,  it  is  therefore  unnecessary  to  discuss  the  effect  of 
the  compromise  above  aluded  to,  and  relied  upon  as  an  estoppel 
by  appellee.  Whatever  our  views  might  be  with  respect  to  that 
matter,  we  are  of  opinion  the  law  is  with  the  appellee,  on  the 
grounds  already  stated. 

Decree  affirmed. 


LEGITIMACY. 
BLYTHE  v.  AYRES,  96  CAL.  532,  (1892). 

Appeal  by  the  "Williams  heirs"  from  a  judgment  of  the 
Superior  Court  of  the  city  and  county  of  San  Francisco  declaring 
Florence  Blythe  to  be  the  sole  heir  of  Thomas  H.  Blythe,  deceased. 

The  court  below  found  that  the  real  name  of  the  deceased 
was  Thomas  H.  Williams,  that  he  had  no  heirs  in  the  direct  line 
except  the  plaintiff,  Florence  Blythe,  and  that  the  persons  known 
as  the  "Williams  heirs"  were  next  of  kin  to  him  in  the  collateral 
line.  There  are  numerous  other  claimants,  who  contest  the  find- 
ing in  favor  of  the  Williams  heirs,  on  behalf  of  whom  briefs  were 


LEGITIMACY.  221 

permitted  to  be  filed  upon  this  appeal  by  their  counsel  as  amici 
curiae.     Further  facts  are  stated  in  the  opinion. 

Garoutte,  J. — This  is  an  action  instituted  under  section  1664 
of  the  Code  of  Civil  Procedure  by  the  plaintiff,  a  minor,  through 
her  guardian,  to  determine  the  heirship  and  title  to  the  estate  of 
Thomas  H.  Blythe,  deceased.  The  section  provides  that  in  all 
estates  now  being  administered,  or  that  may  hereafter  be  adminis- 
tered, any  person  claiming  to  be  heir  to  the  deceased,  or  entitled 
to  distribution  in  whole  or  in  part  of  such  estate,  may,  at  any  time 
after  the  expiration  of  one  year  from  the  issuance  of  letters  testa- 
mentary or  of  administration,  file  a  petition  in  the  matter  of  such 
estate,  praying  the  court  to  ascertain  and  declare  the  rights  of  all 
persons  to  said  estate  and  all  interests  therein,  and  to  whom  dis- 
tribution thereof  should  be  made.  The  case  is  most  important, 
from  any  view.  The  defendants,  claiming  to  be  collateral  kin- 
dred, are  numbered  by  the  hundred,  many  of  them  represented 
by  separate  counsel  of  great  ability  and  experience  in  the  law ;  the 
property  interests  involved  are  very  large;  the  trial  in  the  nisi 
prius  court  extended  continuously  through  the  greater  portion  of 
a  year;  the  facts  are  novel,  and  the  principles  of  law  applicable 
many  and  complicated. 

Plaintiff's  claim  is  based  upon  sections  230  and  1387,  respect- 
ively of  the  Civil  Code  of  California.  Section  230  reads  as  fol- 
lows : — 

"Sec.  230.  The  father  of  an  illegitimate  child,  by  publicly 
acknowledging  it  as  his  own,  receiving  it  as  such,  with  the  con- 
sent of  his  wife,  if  he  is  married,  into  his  family,  and  otherwise 
treating  it  as  if  it  were  a  legitimate  child,  thereby  adopts  it  as 
such ;  and  such  child  is  thereupon  deemed  for  all  purposes  legiti- 
mate from  the  time  of  its  birth.  The  foregoing  provisions  of  this 
chapter  do  not  apply  to  such  an  adoption." 

Section  1387,  as  far  as  it  pertains  to  the  matters  involved  in 
this  litigation,  provides : — 

"Sec.  1387.  Every  illegitimate  child  is  an  heir  of  the  person 
who,  in  writing,  signed  in  the  presence  of  a  competent  witness, 
acknowledges  himself  to  be  the  father  of  such  child." 

As  a  result  of  the  trial,  the  court  filed  findings  of  fact,  and 


222  PRIVATE   INTERNATIONAL   LAW. 

its  conclusions  of  law  based  thereon  are  to  the  effect  that  the 
plaintiff,  Florence  Blythe,  was  and  is  the  child  of  Thomas  H. 
Blythe,  deceased ;  that  said  Thomas  H.  Blythe  legally  adopted  her 
under  the  provisions  of  section  230  of  the  Civil  Code ;  that  she  is 
his  lawful  heir,  and  the  only  person  entitled  to  have  and  receive 
distribution  of  the  estate  of  said  Thomas  H.  Blythe,  deceased. 

The  principles  of  law  and  the  facts  of  the  case  bearing  upon 
her  contention  under  these  respective  provisions  of  the  code  are 
entirely  dissimilar,  involving  a  separate  discussion ;  and  in  the 
construction  of  section  230,  our  investigation  also  necessarily  di- 
vides itself  into  two  distinct  branches. 

1.  Was  plaintiff  so  domiciled  with  relation  to  her  putative 
father's  domicile  as  to  have  rendered  any  action  of  his  looking  to 
adoption  available  for  that  purpose?  or,  placing  the  interrogatory 
in  the  clear  and  emphatic  language  of  appellants'  counsel  (to 
which  interrogatory  they  all  with  great  confidence  give  answer, 
Yes),  Was  she  so  domiciled  or  so  situated  that  she  could  not  be 
subject  to  the  laws  of  California,  and  be  by  those  laws  transmuted 
from  bastardy  to  legitimacy? 

2.  If  her  situation  endowed  her  with  the  capacity  for  legiti- 
mation, did  the  acts  of  Blythe  bring  her  within  the  requirements 
of  the  statute? 

The  facts  found  by  the  court  which  face  us  while  we  are  en- 
gaged in  a  consideration  of  the  first  branch  of  this  subject  may 
be  succinctly  and  substantially  stated  as  follows : — 

1.  That  plaintiff  was  born  in  England,  upon  December  18, 
1873,  and  was  the  issue  of  Thomas  H.  Blythe  and  Julia  Perry ; 

2.  That  Julia  Perry  was  a  native  of  England,  domiciled 
therein,  and  continued  to  there  reside  until  one  month  after  the 
death  of  said  Blythe ; 

3.  That  plaintiff  remained  in  England  until  after  the  death 
of  Blythe,  when  she  came  to  California,  and  said  Blythe  was 
never  at  any  time  within  any  of  the  countries  of  Europe  after  the 
twenty-ninth  day  of  August,  1873  ; 

4.  That  said  Blythe  was  a  citizen  of  the  United  States,  and 
of  the  state  of  California,  domiciled  in  said  state,  and  died  intes- 
tate therein,  April  4,  1883,  leaving  surviving  him  no  wife,  no  fa- 


LEGITIMACY.  223 

ther,  no  mother,  and  no  child,  save  and  except  said  Florence 
Blythe,  the  plaintiff  herein ; 

5.  That  said  Thomas  H.  Blythe  and  said  Julia  Perry  never 
were  married,  and  said  plaintiff  was  begotten  while  said  Blythe 
was  temporarily  sojourning  in  England,  and  was  born  after  said 
Elythe's  return  to  California,  and  that  said  Blythe  never  was  mar- 
ried. 

Before  passing  to  the  merits  of  the  discussion,  we  pause  a 
moment  to  say  that  the  verb  ''adopts,"  as  used  in  section  230,  is 
used  in  the  sense  of  "legitimates,"  and  that  the  acts  of  the  father 
of  an  illegitimate  child,  if  filling  the  measure  required  by  that 
statute,  would  result,  strictly  speaking,  in  the  legitimation  of  such 
child,  rather  than  in  its  adoption.  /Adoption,  properly  considered, 
refers  to  persons  who  are  strangers  in  blood ;  legitimation,  to  per- 
sons where  the  blood  relation  exists.  (See  law  dictionaries, — 
Eouvier's,  Black's,  Anderson's,  and  Rapalje's.)  This  is  the  dis- 
tinguishing feature  between  adoption  and  legitimation,  as  recog- 
nized by  all  the  standard  law-writers  of  the  day  who  have  written 
upon  the  subject;  and  for  the  reason  that  the  text-writers  and  the 
decisions  of  courts,  to  which  we  shall  look  for  light  and  counsel, 
treat  the  subject  as  a  question  of  legitimation,  we  shall  view  the 
matter  from  that  stand-point. 

The  section  is  broad  in  its  terms.  It  contains  no  limitations 
or  conditions,  and  to  the  extent  of  the  power  vested  in  the  legis- 
lature of  the  state,  applies  to  all  illegitimates,  wherever  located 
and  wherever  born.  The  legislature  has  not  seen  fit  to  make  any 
exception  to  its  operation,  and  as  was  said  by  Taney,  C.  J.,  in 
Brewer  v.  BlougJier,  14  Pet.  178,  when  considering  a  quite  simi- 
lar provision  of  a  statute:  "In  the  case  before  us,  the  words  are 
general,  and  include  all  persons  who  come  within  the  description 
of  illegitimate  children,  ....  and  when  the  legislature  speaks 
in  general  terms  of  children  of  that  description  without  making 
any  exceptions,  we  are  bound  to  suppose  they  design  to  include 
the  whole  class." 

Bar,  in  his  work  on  International  Law  (p.  434),  says:  "Le- 
gitimation of  bastards,  either  by  subsequent  marriage  or  by  an 
act  of  the  government  (Rescriptum  principis),  is  nothing  but  d 


224  PRIVATE    INTERNATIONAL   LAW. 

kgal  equalization  of  certain  children  illegitimately  begotten  with 
legitimate  children."  In  other  words,  the  object  and  effect  of 
section  230  is  to  change  the  status  and  capacity  of  an  illegitimate 
child  to  the  status  and  capacity  of  a  child  born  in  lawful  wedlock. 
This  case,  upon  its  facts,  presumably  stands  alone  in  legal 
jurisprudence,  for  counsel,  in  the  exercise  of  great  learning  and 
unexampled  industry,  have  failed  to  parallel  it.  We  have  here  a 
father  at  all  times  domiciled  in  the  state  of  California,  a  mother 
at  all  times  domiciled  in  England,  and  an  illegitimate  child  born 
ill  England,  and  continuously  there  residing  until  the  death  of 
her  father  in  California.  As  to  the  effect  of  our  statutes  upon 
such  a  state  of  facts,  the  consideration  of  the  matter  of  domicile 
of  these  parties,  and  the  principles  of  law  applicable  thereto,  is  a 
most  important  element  to  its  proper  determination,  and  it  is  a 
source  of  some  satisfaction  to  be  able  to  say  that  there  are  ele- 
mentary principles  pertaining  to  this  subject  of  domicile,  even 
though  few  in  number,  upon  which  practically  all  the  text-writers 
stand  on  common  ground,  to  wit : — 

1.  The  domicile  of  the  mother  is  the  domicile  of  the  illegiti- 
mate child,  and  the  place  of  birth  of  the  child  is  an  immaterial 
element. 

2.  In  a  case  of  legitimatio  per  subsequens  matrimonium,  the 
place  of  marriage  does  not  affect  the  question. 

3.  Legitimation  by  a  subsequent  marriage  depends  upon  the 
law  of  the  domicile  of  the  father;  Dicey  on  Domicile,  181,  and 
other  text-writers,  supported  by  many  authorities,  holding  that 
the  domicile  of  the  father  at  the  date  of  the  birth  is  the  vital  in- 
quiry, and  other  authority  (Fraser  on  Parent  and  Child,  52;  Bar 
on  International  Law,  434;  Savigny  on  Private  International 
Law,  302)  holding  that  the  domicile  of  the  father  at  the  date  of 
marriage  is  the  determinative  fact. 

Inasmuch  as  the  deceased,  Blythe,  was  domiciled  in  Califor- 
nia both  at  the  time  of  the  birth  of  the  child  and  at  the  time  he 
performed  the  acts  which  it  is  claimed  resulted  in  legitimation, 
this  question  does  not  become  an  issue  in  the  case,  and  we  are  not 
called  upon  to  dispel  the  clouds  of  doubt  that  envelop  it. 

The  contention  of  appellants  that  the  status  of  a  person  resid- 


LEGITIMACY.  225 

ing  in  a  foreign  country  and  a  subject  thereof  cannot  be  changed 
by  acts  performed  in  California,  under  a  provision  of  the  law  of 
cur  state  legislature,  cannot  be  supported  as  a  rule  without  many 
exceptions,  and  to  the  extent  of  those  exceptions,  a  state  law 
must  be  held,  by  its  own  courts  at  least,  to  have  extraterritorial 
operation.  And  this  principle  of  the  foreign  operation  of  state 
laws  even  goes  to  the  extent  that  in  many  instances  such  laws  are 
recognized  and  given  effect  by  the  courts  of  that  particular  for- 
eign jurisdiction.  The  doctrine  of  extraterritorial  operation  of 
state  laws  is  fully  exemplified  in  the  case  of  Hoyt  v.  Thompson, 
5  N.  Y.  340,  where  the  court  says:  "It  is  a  conceded  principle, 
that  the  laws  of  a  state  have  no  force,  proprio  vigore,  beyond  its 
territorial  limits,  but  the  laws  of  one  state  are  frequently  permit- 
ted by  the  courtesy  of  another  to  operate  in  the  latter  for  the  pro- 
motion of  justice,  where  neither  that  state  nor  its  citizens  will 
suffer  any  inconvenience  from  the  application  of  the  foreign  law. 
This  courtesy,  or  comity,  is  established,  not  only  from  motives 
cf  respect  for  the  laws  and  institutions  of  the  foreign  countries, 
but  from  consideration  of  mutual  utility  and  advantage." 

The  case  of  Burton  v.  Burton,  1  Keyes,  359,  is  a  striking 
illustration  of  the  operation  of  a  law  of  the  United  States  in  affix- 
ing a  different  status  to  a  foreign  subject  resident  in  a  foreign 
country.  In  that  case,  after  plaintiff's  marriage  to  Burton  in  a 
foreign  land,  he  himself  being  a  foreign  resident  and  subject  at 
the  time,  he  emigrated  to  the  state  of  New  York,  was  naturalized, 
and  there  died.  Although  an  actual  resident  of  England  at  all 
times,  upon  the  death  of  her  husband  she  came  to  New  York,  and 
claimed  her  right  of  dower,  upon  the  ground  that  she  was  a  citi- 
zen of  the  United  States,  made  so  by  virtue  of  the  naturalization 
of  her  husband  under  a  general  act  of  Congress  to  that  effect,  and 
her  claim  was  upheld.  In  conclusion,  the  court  uses  this  lan- 
guage :  "It  is  said,  furthermore,  that  she  did  not,  by  residence, 
or  in  any  other  way,  assume  the  allegiance  of  the  United  States, 
or  give  her  assent  to  the  citizenship  conferred  by  the  act.  This, 
however,  was  not  necessary,  to  entitle  her  to  claim  its  benefits." 
In  Headman  v.  Rose,  63  Ga.  458,  the  same  question  was  again 


226  PRIVATE   INTERNATIONAL   LAW. 

presented,  and  that  court  said :  "When  the  claim  was  first  pre- 
sented here  as  to  whether  Mrs.  Rose  could  claim  to  be  a  citizen 
of  the  United  States  under  the  provisions  of  that  act  of  Congress 
(having  never  been  in  the  United  States  until  after  the  death  of 
her  husband),  we  were  all  inclined  to  the  opinion  that  she  could 
not,  but  upon  a  more  careful  examination  of  that  statute,  in  the 
light  of  the  interpretation  which  has  been  given  to  it  by  the  su- 
preme court  of  North  Carolina  in  Kane  v.  McCarthy,  63  N.  C. 
299,  and  by  the  court  of  appeals  of  New  York  in  Burton  v.  Bur- 
ton, 1  Keyes,  371,  and  in  Keliey  v.  Owen,  7  Wall.  496,  in  which 
the  supreme  court  of  the  United  States  cites  the  case  of  Burton 
v.  Burton,  1  Keyes,  359,  approvingly,  we  hold  and  decide  that  if 
Mary  Rose  was  married  to  William  Rose,  the  intestate,  and  he 
was  a  naturalized  citizen  of  the  United  States,  then  she,  by  the 
urms  and  provisions  of  the  act  of  Congress  of  1855,  was  also  a 
citizen  of  the  United  States."  It  will  be  noticed  that  these  de- 
cisions are  not  based  upon  the  principle  that  the  domicile  of  the 
husband  was  the  domicile  of  the  wife,  and  that  consequently  she 
was  deemed  to  be  in  this  country  at  the  date  of  his  naturalization, 
and  therefore  came  under  the  operation  of  the  act,  but  they  rest 
upon  the  broad  principle  that  Congress  has  not  only  the  power 
to  say  what  aliens  shall  become  citizens  of  the  United  States,  but 
what  acts  shall  create  such  citizenship.  The  fact  that  these  cases 
bear  upon  the  political  status  of  the  party,  rather  than  upon  his 
civil  status,  does  not  weaken  their  force  as  authority  here.  In 
principle,  no  distinction  can  be  discerned  in  this  regard.  In  bolh 
cases  there  is  involved  an  exercise  of  the  same  sovereign  power. 
This  doctrine  has  been  carried  to  still  greater  lengths  in  criminal 
cases,  where  a  :rime  has  been  committed  in  a  foreign  jurisdic- 
tion. In  the  Warrender  case,  2  Clark  &  F.  539,  Lord  Brougham 
remarked:  "But  it  may  be  said  that  the  offense  being  committed 
abroad,  and  not  within  the  Scotch  territory,  prevents  the  applica- 
tion to  it  of  the  Scotch  criminal  law.  To  this  it  may,  however,  be 
answered,  that  where  a  person  has  his  domicile  in  a  given  coun- 
try, the  laws  of  that  country  to  which  he  owes  allegiance  may 
visit  even  criminal  offenses  committed  by  him  out  of  its  territory. 
Of  that  we  have  many  instances  in  our  own  jurisprudence;  mur- 


LEGITIMACY.  227 

der  and  treason  committed  by  Englishmen  abroad  are  triable  in 
England,  and  punishable  here.  Nay,  by  the  bill  which  I  intro- 
duced in  1811,  and  which  is  constantly  acted  upon,  British  sub- 
jects are  liable  to  be  convicted  of  felony  for  slave-trading,  in 
whatever  part  of  the  world  committed  by  them." 
Section  215  of  the  Civil  Code  is  as  follows: — 
"Sec.  215.  A  child  born  before  wedlock  becomes  legitimate 
by  the  subsequent  marriage  of  its  parents." 

This  section  takes  a  wide  range ;  its  operation  is  not  confined 
within  state  lines ;  it  is  as  general  as  language  can  make  it ;  oceans 
furnish  no  obstruction  to  the  effect  of  its  wise  and  beneficent  pro- 
visions ;  it  is  manna  to  the  bastards  of  the  world.  If  Blythe,  sub- 
sequent to  the  birth  of  plaintiff,  had  returned  to  England  and 
married  Julia  Perry,  such  marriage,  under  the  provision  of  law 
just  quoted,  ipso  facto,  would  have  resulted  in  the  legitimation  of 
Florence  Blythe.  Then,  in  answer  to  the  interrogatory  of  appel- 
lants already  noticed,  we  say  that  she  was  so  domiciled  that  by 
the  laws  of  California  she  could  have  been  changed  from  bastardy 
to  legitimacy.  Our  statute,  conjoined  with  principles  of  interna- 
tional law,  would  have  changed  her  bastardy  to  legitimacy  in  the 
world  at  large;  and  regardless  of  international  law,  and  regard- 
less of  all  law  of  foreign  countries,  our  statute  law  alone  would 
have  made  her  legitimate  in  the  world  at  large,  whenever  and 
however  that  question  should  present  itself  in  the  courts  of  Cali- 
fornia. And  we  also  have  here  a  most  striking  illustration  of 
the  extraterritorial  operation  of  California  law.  We  have  the 
effect  of  a  statute  of  this  state  attaching  to  a  state  of  facts  where 
the  mother  and  child  were  never  in  California,  but  residing  and 
domiciled  in  England,  and  the  marriage  taking  place  in  England ; 
and  California  law,  as  stated,  has  the  effect  upon  that  child  to  give 
it  a  different  domicile,  and  completely  change  its  status.  Such 
would  not  only  be  the  effect  of  this  law  upon  the  child  viewed  by 
California  courts,  but  such  would  be  its  effect  viewed  by  the  courrs 
of  England,  where  the  child  was  domiciled,  and  that,  too,  notwith- 
standing no  provisions  of  law  are  there  found  for  the  leg.tima- 
tion  of  bastards.  This  assumption  of  Blythe's  marriage  to  Julia 
Ferry,  in  its  facts,  forms  an  exact  photograph  of  the  celebrated 


228  PRIVATE    INTERNATIONAL  LAW. 

case  of  Munro  v.  Munro,  found  in  I  Rob.  App.  492, — a  case  crys- 
tallizing the  judicial  thought  of  the  age  upon  the  subject,  and 
commanding  the  respect  of  all  writers  and  judges  upon  the  law 
of  domicile.  We  shall  make  copious  references  and  indulge  in 
liberal  quotations  from  that  decision,  for  its  legal  soundness  never 
has  been  questioned,  and  as  we  view  the  subject,  it  casts  a  flood 
of  light  upon  many  matters  involved  in  the  investigation  at  hand. 
Munro,  a  Scotch  gentleman  of  fortune  domiciled  in  Scotland, 
while  upon  a  visit  to  London,  cohabited  with  an  Englishwoman 
domiciled  in  England,  and  a  child  was  the  result  of  such  cohab- 
itation. He  subsequently  married  the  woman  in  England,  and 
it  was  held,  under  the  law  of  Scotland,  by  the  House  of  Lords  sit- 
ting as  a  court  of  appeal  (although  if  it  had  been  a  case  appealed 
from  the  English  courts,  the  decision  would,  undoubtedly,  have 
been  the  same),  that  such  child  was  thereby  legitimated,  Scottish 
law  providing  for  legitimation  per  subsequens  matrimonium.  It 
was  there  said:  "It  is  maintained  that  the  pursuer  having  been 
born  in  England  of  an  Englishwoman  not  married  at  the  time 
of  the  birth,  she  was  born  an  illegitimate  child ;  that  that  status  of 
illegitimacy  was  indelible  by  the  law  of  England ;  and  that  a  sub- 
sequent marriage,  even  taking  it  to  be  a  Scotch  marriage,  could 
not  legitimate  the  child,  or  wipe  off  the  indelible  stain  of  illegiti- 
macy. We  cannot  assent  to  this  proposition,  and  with  all  pos- 
sible deference  to  any  different  opinions,  we  know  of  no  author- 
ity for  it  in  the  law  of  Scotland,  or  among  the  jurists  and  writers 
on  general  law,  in  the  application  here  attempted  to  be  made  of  it. 
....  To  say,  again,  that  because  the  child  was  born  in  Eng- 
land of  an  English  mother,  her  illegitimacy  is  indelible,  if  this 
means  that  it  is  indelible  by  the  law  of  England,  and  under  the 
law  of  England,  is  to  say  no  more  than  that  the  law  of  England 
has  not  adopted  the  rule  of  legitimation  per  subsequens  matrimo- 
nium; but  if  it  be  meant  that  because  a  child  was  born  in  England 
it  cannot  become  legitimate  in  Scotland  by  a  Scotch  marriage,  is 
a  question  to  be  determined  by  the  law  of  Scotland,  it  is  a  petitio 
principi  for  which  there  is  no  authority  whatever  in  that  law. 
....  We  are  here  in  a  Scotch  question  and  in  a  Scotch  court, 
applying  a  plain  rule  of  our  law,  and  unless  that  law  says  that  if 


LEGITIMACY.  229 

a  child  be  born  in  England  it  shall  not  have  the  benefit  of  the  rule, 
we  do  not  see  how  it  is  at  all  material  that  it  could  not  enjoy  it  if 
the  law  of  England  were  to  be  applied  to  the  case ;  but  we  know 
cf  no  exception  in  the  law  of  Scotland,  nor,  as  far  as  we  are  in- 
formed, is  there  any  such  exception  recognized  in  the  law  of  any 
country  which  holds  the  principle  of  legitimation  per  subsequent 
matrimouium.  We  are  not  here  giving  any  opinion  on  a  point 
about  which  it  does  not  belong  to  us  to  form  any  judgment.  We 
are  not  inquiring  what  the  law  of  England  might  decide  if  the 
pursuer,  or  any  person  similarly  situated,  were  making  a  claim 
in  an  English  court  of   law  in  respect  of   property   within  their 

jurisdiction We  are  aware  that  conflicts  of  law  may  take 

place,  and  there  is  no  help  for  it  when  they  do  occur ;  but  the  ques- 
tion before  us  is  a  purely  Scotch  question,  to  be  ruled  by  general 
principles,  no  doubt,  but  still  with  reference  to  the  law  of  Scot- 
land in  that  particular  point,  and  we  cannot,  in  consistency  with 
the  established  principles  of  that  law,  hold  that  this  pursuer  could 
not  become  legitimated  by  the  marriage  of  her  parents,  when  or 
wheresoever  she  may  have  been  born.  It  appears  to  us  to  be  very 
clear  that  the  circumstance  of  the  mother  being  English  adds  noth- 
ing at  all  to  the  supposed  difficulty  in  the  place  of  the  pursuer's 
birth.  She  was  certainly  illegitimate  by  the  law  of  England,  and 
by  the  law  of  Scotland  also,  at  the  time  of  her  birth,  and  she  would 
have  been  so  equally  though  her  mother  had  been  a  Scotchwoman. 
Lord  Mackenzie  said:  'I  cannot  help  entertaining  doubt  whether 
the  indelibility  of  English  bastardy  has  any  meaning  beyond  this, 
that  an  English  bastard  is  not  legitimated  by  an  English  mar- 
riage  But  suppose  it  were  true  that  English  bastardy  is 

indelible,  not  only  against  a  marriage  in  England,  but  against  a 
marriage  all  the  world  over, — I  say,  suppose  there  was  produced 
a  statute  providing  and  declaring  that  an  English  bastard  born 
m  England  should  remain  a  bastard  all  the  world  over,  notwith- 
standing anything,  that  could  be  done  in  any  country, — I  ask, 
could  we  give  it  effect?  Could  we  acknowledge  the  authority  of 
such  a  statute  ?  I  think  we  will  be  bound  to  say  that  the  English 
Parliament  might  rule  the  fate  of  the  bastards  in  England,  but 
that  its  laws  were  not  entitled  to  extend  to  other  countries,  and 


230  PRIVATE   INTERNATIONAL  LAW. 

that  there  was  no  principle  of  the  law  of  nations  which  would 
give  effect  to  such  a  statute.'  "  In  summing  up  his  conclusions, 
the  Lord  Chancellor,  after  holding  Munro  to  be  domiciled  in  Scot- 
land, said:  "If  that  be  a  correct  conclusion  from  the  evidence,  it 
follows  that  the  appellant  in  Munro  v.  Munro,  being  the  child  of 
a  domiciled  Scotchman,  had  at  the  moment  of  her  birth  a  capacity 
of  being  legitimatized  by  the  subsequent  marriage  of  her  parents 
for  all  civil  purposes  in  Scotland,  and  that  she,  accordingly,  by 
their  subsequent  marriage  in  1801,  became  legitimated,  and,  as 
such,  capable  of  succeeding  to  the  property  in  question." 

The  foregoing  views  of  learned  judges  are  in  direct  conflict 
with  the  arguments  of  appellants'  counsel  in  this  case ;  and  such 
views  were  declared  to  be  the  law,  after  able  arguments  there 
made  upon  the  same  lines  as  here  presented.  Appellants  insist 
that  the  domicile  of  the  child  irrevocably  fixes  that  child's  status. 
In  this  case,  subsequent  to  the  child's  birth,  Julia  Perry  married 
a  domiciled  Englishman ;  hence  her  domicile  was  permanently  es- 
tablished in  England,  and  for  that  reason  the  child's  domicile, 
being  the  mother's  domicile,  was  permanently  established  there. 
Under  appellants'  reasoning,  this  state  of  facts  would  forever 
debar  the  child  from  legitimation,  for  even  its  presence  in  Cali- 
fornia would  avail  nothing  as  against  its  English  domicile.  If 
such  be  good  law,  section  226  of  the  Civil  Code,  exprersly  au- 
thorizing the  adoption  of  minors  of  other  states,  is  bad  law,  for 
it  is  squarely  in  conflict  with  those  views. 

We  find  in  Story's  work  upon  Conflict  of  Laws  (cec.  105  a) 
the  following:  "6.  As  to  issue  born  before  the  marriage,  if  by 
the  law  of  the  country  where  they  are  born  they  would  be  legiti- 
mated by  the  subsequent  marriage  of  their  parents,  they  will  by 
such  subsequent  marriage  (perhaps  in  any  country,  but  at  all 
events  in  the  same  country)  become  legitimate,  so  that  this  char- 
acter of  legitimacy  will  be  recognized  in  every  other  country.  If 
illegitimate  there,  the  same  character  will  belong  to  them  in  every 
other  country."  But  Judge  Story's  citations  in  its  support  do  not 
clearly  bear  him  out,  and  legal  authority  to  the  effect  that  the  place 
of  birth  forms  no  element  in  the  case  vastly  preponderates. 

We  have  in  Loring  v.  Thorndike,  5  Allen,  257,  a  case  involv- 


LEGITIMACY.  231 

ing  additional  elements,  and  therefore  additional  complications, 
even  to  those  found  in  the  Munro  case.  The  man  was  domiciled 
in  Massachusetts.  The  woman  was  domiciled  in  Mayence.  The 
illegitimate  children  were  born  in  Frank fort-on-the-Main,  and  the 
marriage  occurred  at  that  city.  To  accomplish  legitimation,  the 
Massachusetts  law  required  not  only  a  subsequent  marriage,  but 
a  subsequent  acknowledgement  of  the  child.  Upon  this  state  of 
facts,  and  this  provision  of  law,  the  child  was  held  legitimate  by 
the  Massachusetts  court,  even  though  the  acts  of  acknowledg- 
ment occurred  in  a  foreign  country.  In  the  case  of  In  re  Grove, 
L.  R.  40  Ch.  Div.  216,  Lord  Chief  Justice  Cotton  said:  "What  is 
really  necessary,  I  think,  is,  that  the  father  should  at  the  time  of 
the  birth  of  the  child  be  domiciled  in  the  country  allowing  legiti- 
mation, so  as  to  give  to  the  child  the  capacity  of  being  made  le- 
gitimate by  a  subsequent  marriage ;  but  it  is  the  subsequent  mar- 
riage which  gives  the  legitimacy  to  the  child,  who  has  at  its  birth, 
in  consequence  of  its  father's  domicile,  the  capacity  of  being  made 
legitimate  by  a  subsequent  marriage."  In  the  same  case,  Lord 
Justice  Fry  stated:  '"'ihe  appellant  claims  through  Sarah  Thome- 
gay,  who  was  born  in  1744,  in  this  country  [England],  and  was 
an  illegitimate  child  of  Marc  Thomegay  and  Martha  Powis.  At 
birth  that  child  took  the  domicile  of  its  mother,  and  it  took  the 
stains  of  illegitimacy  according  to  the  law  of  the  domicile  of  its 
mother,  and  it  took  also  the  capacity  to  change  that  status  of  ille- 
gitimacy for  one  of  legitimacy,  provided  that,  according  to  the 
law  of  the  domicile  of  the  father,  the  subsequent  marriage  would 
work  legitimation.  The  position  of  such  a  child,  therefore,  is 
curious,  taking  domicile  and  status  from  the  mother,  but  taking 
the  potentiality  of  changing  its  status  from  its  putative  father." 
In  the  case  of  Shedden  v.  Patrick,  1  Macq.  535,  the  father  being 
domiciled  in  the  state  of  New  York  at  the  date  of  the  child's  birth, 
and  there  being  no  law  of  legitimation  in  New  York,  the  child 
was  declared  illegitimate  by  the  English  courts. 

Appellants'  counsel  confidently  insist  that  Ross  v.  Ross,  129 
Mass.  243,  37  Am.  Rep.  321,  is  valuable  as  an  authority  to  support 
their  views.  After  a  careful  examination  of  the  opinion  in  that 
case,  we  are  unable  to  perceive  its  force  as  authority  here.     A 


232  PRIVATE  INTERNATIONAL  LAW. 

child  was  legally  adopted  in  Pennsylvania.  The  adoptive  parent 
removed  with  the  child  to  Massachusetts,  where  the  father  be- 
came domiciled,  and  there  died,  leaving  real  estate  in  that  com- 
monwealth. The  litigation  arose  upon  a  question  as  to  who  was 
entitled  to  inherit,  and  the  court  said:  "We  are  therefore  of  the 
opinion  that  the  legal  status  of  the  child  of  intestate,  once  acquired 
by  the  demandant  under  a  statute  and  by  a  judicial  decree  of  the 
state  of  Pennsylvania,  while  the  parties  were  domiciled  there,  con- 
tinued after  their  removal  into  this  commonwealth,  and  that  by 
virtue  thereof  the  demandant  is  entitled  to  maintain  this  action." 
Respondent's  position  in  this  case  controverts  nc  principle  of  law 
there  declared,  and  it  is  difficult  to  see  how  the  court  could  have 
arrived  at  a  different  conclusion.  The  judgment  would  have 
been  the  same  if  the  father  had  never  changed  his  domicile  to 
Massachusetts,  and  probably  the  same  if  there  had  been  no  law 
of  adoption  whatever  in  that  state.  Miller  v.  Miller,  91  N.  Y. 
315,  43  Am.  Rep.  669,  in  principle,  seems  to  have  been  that  char- 
acter of  case,  and  the  same  conclusions  were  there  arrived  at  by 
the  court.  In  the  celebrated  case  of  Birtzvhistle  v.  Vardill,  2 
Clark  &  F.  840,  to  which  the  learned  chief  justice  refers  in  his 
opinion  in  the  Ross  case,  the  decision  would  have  undoubtedly 
been  in  line  with  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321, 
if,  in  lieu  of  the  Statute  of  Merton,  England's  law  of  descent  had 
been  similar  to  the  Massachusetts  provision.  The  case  of  Foster 
v.  Waterman,  124  Mass.  592,  involves  nothing  but  a  single  ques- 
tion of  statutory  construction,  and  in  no  manner  supports  the 
proposition  that  a  resident  of  one  state  cannot  adopt  a  child  under 
the  adoption  laws  of  another  state,  where  ?uch  child  is  domiciled, 
but  Appeal  of  Wolf,  13  Atl.  Rep.  760,  does  hold  directly  to  the 
contrary  of  such  contention. 

The  doctrine  of  indelibility  of  bastardy  in  England  is  not 
correct  in  its  broadest  sense,  for  it  is  in  the  power  of  Parliament 
to  legitimate  bastards  at  any  time.  Neither  is  the  rule  universal 
that  a  child  legitimate  in  one  country  is  legitimate  in  all  the  world. 
This  principle  of  different  status  in  different  countries  finds  a 
striking  illustration  in  Lolly's  case,  reviewed  and  dissented  from 
by  Lord  Brougham  in  Warrender  v.  Warrender,  2  Clark  &  F. 


LEGITIMACY.  233 

539.  In  that  case  the  facts  disclose  that  Lolly  was  married  in 
England,  divorced  in  Scotland,  and  upon  his  return  to  England 
and  making  a  second  marriage,  he  was  then  tried  and  convicted 
of  bigamy.  Here  we  have  a  state  of  facts  where,  under  the  re- 
spective laws  of  England  and  Scotland,  Lolly,  after  his  divorce 
and  prior  to  his  second  marriage,  was  a  married  man  in  England 
and  an  unmarried  man  in  Scotland,  and  after  his  second  marriage 
he  had  a  lawful  wife  in  Scotland  and  a  different  lawful  wife  in 
England,  thus  having  two  lawful  wives  at  the  same  time.  It  can 
hardly  be  said  that  Lolly's  status  was  the  same  in  both  countries. 
A  similar  principle  is  applied  to  the  legitimacy  of  children  by 
subsequent  marriage.  The  provisions  of  section  215  would  oper- 
ate upon  and  legitimate  a  child  born  of  a  father  who,  at  the  time 
of  its  conception  and  birth,  was  the  husband  of  another  woman, 
or  would  apply  to  an  incestuous  bastard.  Such  was  expressly 
declared  to  be  the  law  under  a  similar  provision  of  a  state  statute 
in  the  case  of  Haivbccker  v.  Hazvbecker,  43  Md.  516,  the  court 
saying:  "No  doubt,  the  legislature,  in  thus  mitigating  the  severe 
rule  of  the  common  law,  intended  to  hold  out  to  the  sinning  par- 
ents an  inducement  to  marry,  and  thus  put  a  stop  to  the  mischiefs 
of  further  illicit  intercourse  between  them,  but,  in  our  opinion, 
the  main  purpose  and  intent  of  the  enactment  we  are  nozv  con- 
sidering -was  to  remove  the  taint  and  disabilities  of  bastardy  from 
the  unoffending  children  whenever  their  parents  did  marry,  zuith- 
out  regard  to  the  deepness  of  guilt  on  the  part  of  their  parents 
in  which  they  zvere  conceived  and  born."  Such  a  child,  under 
the  canon  law,  would  be  deemed  an  adulterine  or  incestuous  bas- 
tard, incapable  of  legitimation,  and  in  the  courts  of  certain  coun- 
tries where  that  law  controls  would  not  be  recognized  as  legiti- 
mate. Thus  is  presented  a  case,  and  by  no  means  an  anomalous 
one,  where  the  child  would  be  legitimate  in  California,  and  ille- 
gitimate by  the  laws  of  various  other  countries.  (See  Fraser 
on  Parent  and  Child,  56,  subd.  10.) 

We  have  quoted  thus  extensively  from  the  authorities  upon 
the  subject  of  domicile  as  specially  bearing  upon  the  question  of 
legitimatii  per  subsequens  matrimonium,  for  the  reason  that  we 
are  unable  to  perceive  any  difference  in  the  general  principles  of 


234  PRIVATE   INTERNATIONAL   LAW. 

law  bearing  upon  that  character  of  legitimation  and  in  those  prin- 
ciples bearing  upon  other  farms  of  legitimation  authorized  by 
the  same  statute.  The  only  distinction  claimed  by  appellants  is, 
that  legitimation  founded  upon  subsequent  marriage  is  based 
upon  the  fiction  of  law  that  a  previous  consent  existed,  and  the 
marriage  related  back  to  that  time.  Upon  this  point  it  would 
seem  all-sufficient  to  say  that  our  statute  does  not  recognize  such 
a  fiction,  and  its  effective  operation  in  no  wise  depends  upon  the 
assumption  of  its  presence.  Times  are  not  what  they  once  were, 
and  we  live  in  an  age  too  practical  to  build  our  law  upon  the  un- 
stable foundation  of  fictions.  In  Birtwhistle  v.  Vardill,  2  Clark 
&  F.  840,  Tyndall,  L.  C.  J.,  in  speaking  upon  this  question,  says : 
"Pothier,  on  the  other  hand,  when  he  speaks  of  the  effect  of  a 
subsequent  marriage  in  legitimating  children  born  before  it,  dis- 
claims the  authority  of  the  canon  law,  nor  does  he  mention  any 
fiction  of  an  antecedent  marriage,  but  rests  the  effect  upon  the 
positive  law  of  the  country.  He  first  instances  the  custom  of 
Troyes,  and  then  adds  ....  that  it  is  a  common  right,  received 
throughout  the  whole  kingdom."  Schouler  on  Domestic  Rela- 
tions (sec.  226)  says:  "The  principle  to  which  the  law  of  legis- 
lation per  subsequens  matrimonium  is  to  be  referred  has  been  a 
subject  of  controversy.  The  canonists  base  the  law,  not  on  gen- 
eral views  of  expediency  and  justice,  but  upon  a  fiction  which 
they  adopted  in  order  to  reconcile  the  new  law  with  established 
rules ;  for,  assuming  that,  as  a  general  rule,  children  are  not  legiti- 
mate unless  born  in  lawful  wedlock,  they  declared  that  by  a  fic- 
tion of  law  parents  were  married  when  the  child  was  born.  Such 
reasoning,  by  no  means  uncommon  when  the  wise  saw  more 
clearly  what  was  right  than  why  it  was  so,  has  not  stood  the  test 
of  modern  logic,  and  the  Scotch  courts  have  placed  the  rule  once 
more  where  its  imperial  founders  left  it,  namely,  on  the  ground 
of  general  policy  and  justice  " 

Upon  principle,  no  distinction  can  be  made  between  the  rules 
of  law  applicable  to  these  various  forms  of  legitimation.  Many 
of  the  states  of  this  Union,  in  order  to  effect  tnose  ends,  require, 
in  addition  to  a  subsequent  marriage,  that  the  father  (in  some 
siates  both  father  and  mother)  shall  also  acknowledge  the  child. 


LEGITIMACY.  235 

This  is  the  case  of  Loring  v.  Thorndike,  5  Allen,  257,  where  the 
marriage  not  only  took  place  in  foreign  territory,  but  as  is  said 
in  Ross  v.  Ross,  129  Ma<«s.  259,  the  facts  of  the  acknowledgment 
occurred  in  a  foreign  jurisdiction.  Thus  Massachusetts  law  re- 
quired marriage  and  acknowledgment,  and  invoked  the  rule  of 
domicile  of  the  father  tu  establish  the  capacity  of  the  child  for 
legitimation.  Section  2405  of  the  Revised  Code  of  Alabama 
allows  legitimation  of  a  bastard  child  simply  by  acknowledgment 
of  the  father  in  writing,  certified  and  recorded.  No  consent  of 
the  mother  is  required ;  no  notice  to  or  consent  of  the  child  is  de- 
manded. If  such  a  statute  were  found  within  the  lids  of  the 
Civil  Code  of  this  state,  under  the  facts  of  this  case  as  they  ap- 
pear upon  the  question  of  domicile,  Blythe,  by  following  the  re- 
quirements of  the  provision  of  law  there  laid  down,  could  legiti- 
mate his  illegitimate  child.  California  la»v  (Civ.  Code,  sec.  215) 
declares  that  marriage  ipso  facto  results  in  legitimation,  and  sec- 
tion 230  declares  that  acknowledgment  accompanied  by  certain 
other  acts  shall  result  in  legitimation.  If  the  principle  of  the 
domicile  of  the  father  is  good  law  where  marriage  and  acknowl- 
edgment are  both  required  to  accomplish  the  result,  that  principle 
is  no  less  good  law  when  applied  to  marriage  alone  under  section 
215,  or  when  applied  to  acknowledgment  alone  under  the  Alabama 
Code,  or  when  applied  to  acknowledgment  accompanied  by  other 
acts  under  section  230  of  the  Civil  Code  of  this  state. 

Dicey  says  (p.  192)  :  "Question.  What  is  the  effect,  ac- 
cording to  English  law,  of  a  person  being  made  legitimate  by  the 
authority  of  a  foreign  sovereign?  Suppose  that  a  person  born 
illegitimate  is  legitimated  by  a  decree  of  the  Czar  of  Russia ;  will 
such  a  person  be  held  legitimate  here?  There  is  no  English  au- 
thority on  the  subject.  The  most  probable  answer  is  (it  is  con- 
ceived), that  the  effect  of  such  a  decree  would,  like  the  effect  of 
a  subsequent  marriage  of  the  parents,  depend  on  the  domicile  of 
such  person's  father  at  the  time  of  the  birth.  Suppose,  that  is  to 
say,  that  D,  the  child's  father,  were  domiciled  in  Russia  at  the 
time  of  the  child's  birth,  the  decree  ivould  have  the  effect  of  mak- 
ing the  child  legitimate    in    England.     A  person,  on    the    other 


236  PRIVATE   INTERNATIONAL   LAW. 

hand,  born  of  a  father  domiciled  in  England  could  not  be  made 
legitimate  here  by  the  force  of  any  foreign  law'.' 

Bar,  in  his  International  Law,  has  discussed  this  identical 
question  at  length,  although  it  can  scarcely  be  said  to  be  even 
incidentally  mentioned  in  the  works  of  either  Savigny,  Foote, 
Phillimore,  or  Schaffner.  He  says  (sec.  198)  :  "In  what  we 
have  said  we  have  proceeded  on  the  footing  that  legitimation,  if 
the  consent  of  the  child  be  validly  given,  is  dependent  solely  on 
the  personal  law  of  the  father,  and  that,  therefore,  if  this  law  al- 
lows legitimation  by  an  act  of  the  head  of  the  state,  it  matters  not 
to  inquire  whether  some  other  legal  system,  in  particular  the  per- 
sonal law  which  the  child  has  hitherto  enjoyed,  recognizes  this 
legitimation ;  but  that,  on  the  contrary,  legitimation  per  rescrip- 
tum  is  to  be  regarded  in  international  law  on  exactly  the  same 
footing  as  legitimation  per  subsequens  matrimonium.  This  opin- 
ion, which,  as  we  think,  is  the  prevailing  opinion  in  German  juris- 
prudence, and  in  which,  too,  Fiore  (sec.  149),  Phillimore  (sec. 
542),  and  Wharton  (sec.  24^9)  concur,  has,  however,  often  been 
disputed.  In  the  first  place,  it  has  been  said  that  an  act  of  that 
kind  by  a  sovereign  must  necessarily  have  its  operation  confined 
to  the  dominions  of  that  sovereign,  for  he  has  no  authority  be- 
yond these  limits;  but  if  it  be  true,  generally,  that  the  personal 
law  of  the  father  is  the  rule,  that  law  must  be  allowed  to  say  that 
legitimation  can  take  place  by  means  of  an  act  of  that  kind.  The 
legitimation  is  to  be  recognized,  not  because  the  sovereign  is  to 
exercise  sovereign  rights  in  another  ccuntry,  but  because  the  per- 
sonal law  is  to  have  effect  there.  The  opposite  opinion,  which  is 
held  by  older  writers,  is  no  doubt  explained,  and  to  some  extent 
justified,  by  the  imperfect  legal  capacity  which  in  the  middle  ages, 
and  in  many  territories  down  to  later  times,  clung  to  the  bastard, 
especially,  too,  as  the  sole  result  of  legitimation,  even  in  the  ter- 
ritory of  the  sovereign  who  bestowed  it,  was  in  many  cases 
merely  to  withdraw  the  estate  of  the  person  so  legitimated,  upon 

his  death,  from  the  grasp  of  his  sovereign,  etc But,  in  the 

second  place,  the  more  modern  French  school,  while  they  reject 
the  view  of  the  older  writers  as  to  the  effect  of  the  legitimation 
being  necessarily  confined  to  the  territory  of  the  sovereign  who 


LEGITIMACY.  237 

bestows  it,  refuse  to  recognize  this  kind  of  legitimation,  unless  it 
is  also  recognized  in  the  personal  law  which  the  child  has  hitherto 
enjoyed.  In  this  way,  one  who  has  hitherto  been  a  French  child, 
in  respect  that  the  Civil  Code  has  never  sanctioned  legitimation 
per  rescriptum,  can  never  be  legitimated  bv  the  act  of  a  foreign 
sovereign.  But  Laurent,  in  arguing  in  support  of  this  doctrine 
that  legitimation  touches  the  status  of  persons,  and  that  this  status 
must  be  determined  everywhere  of  Frenchmen  by  the  law  of 
France,  proves  too  much.  1  his  rule  would  have  to  hold,  also, 
in  the  cases  of  legitimation  by  subsequent  marriage,  so  that  in 
this  case,  also,  the  personal  law  of  the  child  would  be  the  only 
rule." 

In  this  connection,  and  as  bearing  directly  and  emphatically 
upon  the  general  principles  involved  m  the  solution  of  the  impor- 
tant question  presented  by  this  branch  of  the  case,  we  again  quote 
from  Bar  (sec.  194)  :  "If  the  personal  law  of  the  child  requires 
more  conditions  to  be  observed  before  it  will  pronounce  that  1 
child  has  been  legitimated,  the  reason  of  that  is,  not  any  anxiety 
for  the  interest  of  the  child,  so  much  as  for  that  of  the  father  and 
his  family,  e.  g.,  the  other  children,  his  collateral  relations ;  but 
the  state,  to  which  the  child  has  up  to  that  moment  belonged,  has 
no  interest  in  that  matter,  and  if  that  legal  system  which  is 
charged  with  the  protection  of  the  family  is  willing  to  hold  the 
child  legitimated,  there  is  in  truth  no  conflict  between  the  two 
systems.  That  system  to  which  the  child  has  hitherto  belonged 
s?ys :  'If  the  father  belonged  to  me,  I  would  not  hold  the  child  to 
be  legitimated.'  That  involved  no  contradiction  of  the  other  sys- 
tem, which  says:  'Since  the  father  belorgs  to  me,  I  do  hold  the 
child  to  be  legitimated.'  No  doubt  we  must  assume  that  assent 
of  the  child  is  given  in  due  legal  form,  for  legitimation  can  only 
take  place  against  the  child's  wish  if  the  personal  law  of  the  child 
forces  that  upon  him  or  her ;  but  in  by  far  the  greater  number  of 
cases  it  will  be  beyond  all  doubt  that  the  legitimation  is  advantage- 
ous to  the  child,  and  the  child  or  its  guardian  can  subsequently 
signify  its  approval  of  and  found  upon  it." 

Legitimation  is  the  creature  of  legislation.  Its  existence  is 
solely  dependent  upon  the  law  and  policy  of  each  particular  sov- 


238  PRIVATE   INTERNATIONAL   LAW. 

ereignty.  The  law  and  policy  of  this  state  authorize  and  en- 
courage it,  and  there  is  no  principle  upon  which  California  law 
and  policy,  when  invoked  in  California  courts,  shall  be  made  to 
surrender  to  the  antagonistic  law  and  policy  of  Great  Britain.  It 
was  said  in  Munro  v.  Munro,  i  Rob.  App.  492 :  "We  are  here  in 
a  Scotch  question  and  in  a  Scotch  court,  applying  a  plain  rule  of 
our  law,  and  unless  that  law  says  that  if  a  chidl  be  born  in  Eng- 
land it  shall  not  have  the  benefit  of  the  rule,  we  do  not  see  how 
that  it  is  at  all  material  that  it  could  not  enjoy  it  if  the  law  of 
England  were  to  be  applied  to  the  case" ;  and  again :  "We  are  not 
inquiring  what  the  law  of  England  might  decide  if  the  person 
were  making  a  claim  in  an  English  court  of  law  in  respect  of  prop- 
erty Within  their  jurisdiction."  And  we  say  here,  plaintiff  was  the 
child  of  Blythe,  who  was  a  domiciled  citizen  of  the  state  of  Califor- 
nia. She  founds  her  claim  upon  the  statutes  of  this  state,  and  is 
now  here  invoking  the  jurisdiction  of  the  courts  of  this  state.  It  is 
a  question  of  California  law  to  be  construed  in  California  courts, 
and  we  see  nothing  in  our  constitution  or  statutory  law,  or  in  in- 
ternational law,  to  have  prevented  Blythe  from  making  the  plain- 
tiff his  daughter  in  every  sense  that  the  word  implies.  In  conclu- 
sion, we  hold  that  Blythe  being  domiciled  in  the  state  of  Califor- 
nia both  at  the  time  of  the  birth  of  plaintiff  and  at  the  time  he 
performed  the  acts  which  it  is  claimed  resulted  in  the  legitimation 
of  plaintiff,  and  California  law  authorizing  the  legitimation  of 
bastards  by  the  doing  of  certain  acts,  it  follows  that  Florence 
Blythe,  the  plaintiff,  at  all  times  was  possessed  of  a  capacity  for 
legitimation,  under  section  230  of  the  Civil  Code  of  this  state. 

We  pass  to  an  examination  of  the  second  branch  of  the  dis- 
cussion involved  in  the  consideration  of  section  230;  namely,  if 
plaintiff's  situation  endowed  her  with  the  capacity  for  legitima- 
tion, did  the  acts  of  Blythe  bring  her  within  the  requirements  of 
the  statute?  Those  requirements  are:  1.  He  shall  publicly  ac- 
knowledge the  child  as  his  own ;  2.  He  shall  receive  it  as  his  child, 
with  the  consent  of  his  wife,  if  he  is  married,  into  his  family; 
3.  He  shall  otherwise  treat  is  as  if  it  were  a  legitimate  child. 

As  to  these  matters,  the  trial  court  found  in  detail  the  facts 
to  be,  that  Blythe  had  fulfilled  every  requirement  of  the  satute. 


LEGITIMACY.  239 

These  findings  are  strenuously  attacked  as  being  unsupported  by 
tne  evidence,  and  we  are  called  upon  to  pass  upon  its  sufficiency 
in  this  regard. 

This  section  of  the  code  is  entitled  to  a  liberal  construction, 
because  section  4  provides :  "The  rule  of  the  common  law,  that 
statutes  in  derogation  thereof  are  to  be  strictly  construed,  has  no 
application  to  this  code.  The  code  establishes  the  law  of  this 
state  respecting  the  subjects  to  which  it  relates,  and  its  provi- 
sions ....  are  to  be  liberally  construed,  with  a  view  to  effect 
its  objects  and  to  promote  justice."  By  virtue  of  this  provision, 
the  court,  in  the  case  of  In  re  Jcssup,  81  Cal.  419,  has  expressly 
declared  that  this  section  shall  have  a  liberal  construction,  but, 
as  there  said,  "liberal  construction  does  not  mean  enlargement  or 
restriction  of  a  plain  provision  of  a  written  law.  If  a  provision 
of  the  code  is  plain  and  unambiguous,  it  is  the  duty  of  the  court 
to  enforce  it  as  it  is  written.  If  it  is  ambiguous  or  doubtful,  or 
susceptible  of  different  constructions  or  interpretations,  then  such 
liberality  of  construction  is  to  be  indulged  in  as,  within  the  fair 
interpretation  of  its  language,  will  effect  its  apparent  object  and 
promote  justice." 

Did  Blythe  acknowledge  the  plaintiff  to  be  his  own  child? 
The  word  "acknowledge"  has  no  technical  meaning,  and  in  its 
ordinary  acceptation  is  defined,  by  Webster,  "to  own  or  admit  the 
knowledge  of."  It  is  not  necessary  to  dwell  at  great  length  upon 
this  special  element  necessary  to  satisfy  the  statute.  Under  the 
evidence,  it  can  hardly  be  considered  debatable.  Blythe  declared 
the  plaintiff  to  be  his  child,  to  all  persons,  upon  all  occasions.  He 
was  garrulous  upon  the  subject.  Aside  from  his  business  occu- 
pations, his  mind  ever  rested  upon  his  relations  to  the  child,  and 
it  was  his  common  topic  of  conversation.  If  necessary  to  this  de- 
cision, it  could  almost  be  held  that  he  shouted  it  from  the  house- 
tops. He  acknowledged  the  child  to  its  mother  and  to  its  grand- 
mother before  it  was  born,  and  subsequently,  in  no  single  in- 
stance, was  he  ever  heard  to  deny  its  paternity.  It  was  named 
and  baptized  Florence  Blythe  at  his  request,  and  ever  after  has 
been  known  to  the  world  as  Florence  Blythe.  Authority  is  not 
necessary  to  be  cited  to  support  this  branch  of  the  case,  but  In 


240  PRIVATE    INTERNATIONAL  LAW. 

re  Jessup,  81  Cal.  419,  is  not  onlv  in  accord  with  this  position,  but 
conclusive  in  its  fovor.  This  acknowledgment  was  also  public, 
for,  as  we  have  seen,  the  thought  of  concealment  of  the  paternity 
of  the  child  never  entered  his  mind.  Why  should  it,  when  it  is 
entirely  apparent  from  the  evidence  that  he  was  proud  of  such 
paternity  ? 

2.  Did  Blythe  receive  it  as  his  child,  with  the  consent  of  his 
wife,  into  his  family?.  Blythe  had  no  wife,  and  that  element  of 
the  statute  is  eliminated  from  the  case.  No  construction  of  the 
statute,  however  rigid,  would  hold  the  existence  of  a  wife  neces- 
sary, before  the  benefits  to  be  derived  under  this  section  could  pos- 
sibly attach  to  an  illegitimate  child.  This  question  of  the  wife's 
consent  can  only  be  a  material  element  when  there  is  a  wife  to 
consent.  In  re  Jessup,  81  Cal.  419,  fully  recognizes  and  necessar- 
ily adopts  this  principle,  for  in  that  case,  as  here,  the  father  of  the 
child  had  no  wife  to  consent,  and  such  fact  would  thus  have  de- 
feated plaintiff's  claims  at  the  very  threshold  of  the  litigation.  It 
may  be  conceded,  for  the  purposes  of  this  case,  that  if  Blythe  had 
a  family,  such  child  must  have  been  received  therein,  or  the  stat- 
ute would  not  have  been  satisfied ;  but,  as  we  have  seen,  if  Blythe 
had  no  wife  to  consent,  that  requirement  has  no  standing  here; 
so  if  he  had  no  family  into  which  the  child  could  have  been  re- 
ceived, that  element  is  foreign  to  the  case.  Under  the  rule  of 
liberal  construction  laid  down  in  the  case  of  In  re  Jessup,  81  Cal. 
419,  such  must  necessarily  be  the  law.  To  give  that  meaning 
to  the  statute  by  which  all  men  who  have  no  families  are  debarred 
from  legitimating  their  illegitimate  offspring  would  be  to  give  the 
section  a  harsh  and  illiberal  construction.  Unless  the  provision 
is  so  plain  and  explicit  as  to  amount  to  an  express  inhibition  to 
that  effect,  upon  every  principle  of  right  and  justice  we  could  not 
so  hold.  The  rule  of  construction  as  declared  in  the  Jessup  case 
is,  that  if  the  statute  is  ambiguous  or  doubtful,  or  susceptible  of 
different  constructions  or  interpretations,  then  such  construction 
is  to  be  indulged  as,  within,  the  fair  interpretation  of  its  lan- 
guage, will  effect  its  apparent  object  and  purpose.  Section  1866 
of  the  Code  of  Civil  Procedure  further  provides:  "When  a  stat- 
ute or  instrument  is  equally  susceptible  of  two  interpretations, 


LEGITIMACY.  241 

one  in  favor  of  natural  right,  and  the  other  against  it,  the  former 
is  to  be  adopted."  Applying  these  tests  of  statutory  construction 
to  this  provision,  but  one  result  can  flow  therefrom,  and  that  is, 
the  existence  of  a  family,  no  more  than  the  existence  of  a  wife, 
is  an  indispensable  element  to  a  complete  and  perfect  adoption 
KoT  legitimation,  more  properly  speaking)  under  this  provision 
of  law.  This  view  is  fully  borne  out  by  the  decision  in  In  re 
Jessup,  81  Cal.  419.  It  is  said  in  the  decision  of  the  court  in  that 
case,  referring  to  Jessup :  "As  he  had  no  home  and  no  family  in 
the  strict  sense  of  a  'collective  body  of  persons  who  live  in  one 
house  and  under  one  head  or  manager,  a  household  including 
parents,  children,  and  servants,'  it  would  not  be  a  fair  or  liberal 
construction  to  say  that  the  child  had  not  been  adopted  or  ac- 
knowledged because  he  had  not  been  received  in  such  a  home  or 
made  a  member  of  such  family."  It  is  needless  to  say  that  the 
Jessup  case  was  considered  with  the  care  that  its  importance  de- 
manded, for  the  record  discloses  that  fact;  and  it  may  be  sug- 
gested that  upon  this  question  alone  the  court  stood  together.  In- 
deed, the  learned  counsel  representing  appellants  in  that  case 
throughout  their  arguments  conceded  such  to  be  the  law.  Blythe 
had  no  family.  The  court  found  that  he  was  living  with  a  mis- 
tress in  San  Francisco  from  the  year  1880  to  the  time  of  his 
death.  He  appears  to  have  lived  in  lodging-houses  during  all 
these  years.  He  had  no  relations,  save  of  the  collateral  line,  and 
they  were  at  all  times  residing  in  a  foreign  country.  He  had 
not  seen  them  or  communicated  with  them  for  more  than  ten 
years  prior  to  his  death,  and  at  no  time  had  he  seen  any  of  them, 
or  communicated  with  any  of  them,  since  Florence  Blythe,  the 
plaintiff,  was  born.  If  he  had  a  family,  either  his  mistress  or 
tnese  collateral  kindred  constituted  that  family.  Such  cannot  be 
the  fact,  and  it  would  be  a  travesty  upon  the  word  to  so  hold.  It 
was  held  in  the  Jessup  case  that  the  father  had  a  family,  in  the 
sense  of  brothers  and  sisters,  with  whom  he  was  brought  into  fre- 
quent contact,  and  from  whom  he  concealed  and  denied  the  pater- 
nity of  the  child,  and  for  these  reasons,  and  others,  the  court  held 
there  was  no  adoption.  There  are  no  facts  in  this  case  in  the 
slightest  degree  comparable  to  those    there  presented.     In  that 


242  PRIVATE   INTERNATIONAL   LAW. 

case,  the  language  of  the  court  as  to  this  point  bears  directly  upon 
the  question  of  acknowledgment,  and  not  as  to  the  reception  into 
the  family ;  and  we  have  already  seen  that  a  public  acknowledg- 
ment was  made  by  Blythe  against  which  nothing  can  be  said.  If 
the  term  "receiving  it  into  his  family"  does  not  necessarily  mean 
an  actual  reception  into  an  actual  family,  but  may  mean  a  con- 
structive reception  into  a  constructive  family,  then  such  measure 
of  requirement  is  filled  to  the  brim.  Plaintiff  was  baptized  in 
Blythe's  name  at  his  request.  Their  correspondence  indicates 
hearts  filled  with  mutual  affection.  Her  picture  looked  down 
upon  him  from  its  place  upon  the  wall.  At  his  rooms  her  name 
was  a  household  word. 

We  pass  to  the  examination  of  the  remaining  element  of  the 
statute,  to  wit:  "He  shall  otherwise  treat  it  as  a  legitimate  child." 
If  the  father  has  publicly  acknowledged  the  child  to  be  his  child, 
and  has  taken  it  into  his  family,  it  would  seem  but  little  remained 
to  be  done  to  wash  away  forever  the  stain  of  bastardy.  The  pub- 
lic acknowledgment  of  the  child  is  the  main  fact.  It  is  the  im- 
portant factor,  in  the  eyes  of  the  statute.  If  the  child  was  pub- 
licly acknowledged  and  received  into  the  family,  it  would  be  a 
novel  case  where  a  court  of  equity  would  close  its  doors  and  re- 
fuse to  declare  a  legitimation  because  the  child  was  poorly  clothed 
and  illy  fed.  That  case  has  not  yet  arisen,  and  it  is  hoped  and 
believed  it  never  will.  The  statute  clearly  means  that  the  father 
must  treat  his  illegitimate  child  as  he  would  naturally  treat  his 
legitimate  child,  not  as  the  majority  of  men  in  his  financial  cir- 
cumstances would  or  should  treat  their  children.  Every  man 
furnishes  the  rule  by  which  he  must  be  measured.  No  imaginary 
standard  of  excellence  can  be  created,  and  then  it  be  demanded 
that  Blythe  shall  rise  to  that  standard.  If  appellants'  contention 
be  true,  a  child  whose  father  was  an  ignorant  man  believing  edu- 
cation an  evil  to  be  shunned,  and  who  therefore  denied  an  educa- 
tion to  the  child,  could  not  be  granted  legitimation.  Upon  appel- 
lants' theory,  an  illegitimate  child  whose  father  was  a  miser  would 
be  compelled  to  bear  forever  the  stain  of  bastardy  While  Blythe 
was  a  man  of  large  property  interests,  his  estates  were  heavily 
involved.     Money  was  required  in  many  channels,  and  it  is  not 


LEGITIMACY.  243 

probable  that  he  had  any  surplus  of  cash  on  hand.  Plaintiff  was 
well  clothed  and  well  fed.  It  appears  that  at  no  time  was  she  de- 
prived of  the  necessaries  of  life.  She  resided  at  all  times  either 
with  her  mother  or  her  grandfather.  Blythe  furnished  something 
near  $150  a  year  for  her  support ;  certainly  during  her  infancy  this 
was  entirely  sufficient,  and  no  complaints  were  made  to  him  that 
more  money  was  needed  to  meet  her  wants.  At  all  these  times  he 
himself  was  either  stopping  in  a  log  house  in  the  mountains  of 
Trinity,  or  living  with  his  mistress  in  lodgings  in  San  Francisco, 
surrounded  by  his  dogs,  birds,  and  cats,  while  his  hens  were  lo- 
cated upon  the  roof.  It  may  well  be  inferred  from  the  simplicity  of 
his  own  life  as  indicated  by  the  foregoing  circumstances,  that  if 
legitimate  children  had  been  born  to  him,  they  would  have  been 
treated,  as  far  as  pecuniary  expenditures  were  concerned,  upon 
the  same  lines  as  this  illegitimate  child  was  treated.  He  made  a 
will,  which  was  subsequently  lost  or  destroyed,  wherein  he  pro- 
vided for  her.  He  corresponded  with  her  as  a  father  would  cor- 
respond with  his  little  daughter.  He  had  her  christened  in  the 
name  of  Florence  Blythe.  Her  health,  her  education,  and  her  re- 
ligion were  matters  in  which  he  exercised  the  utmost  concern. 
She  occupied  his  thoughts,  and  her  name  was  upon  his  lips  in 
his  dying  hour.  For  these  reasons,  it  may  well  be  said  that  ''he 
otherwise  treated  her  as  a  legitimate  child." 

We  pass  to  an  examination  of  section  1387  of  the  Civil  Code, 
upon  which  plaintiff  relies  to  constitute  herself  an  heir  of  Thomas 
H.  Blythe,  deceased.  That  section  declares,  inter  alia,  that  "every 
illegitimate  child  is  an  heir  of  the  person  who,  in  writing,  signed 
in  the  presence  of  a  competent  witness,  acknowledges  himself  to 
be  the  father  of  such  child."  It  is  unnecessary  to  decide  whether 
this  provision  affects  the  status  of  a  child,  or  whether  it  is  alone  a 
statute  of  descent.  If  it  either  directly  or  indirectly  touches  upon 
status,  our  views  upon  the  question,  as  herein  previously  ex- 
pressed, are  applicable.  If  it  is  a  statute  of  descent,  pure  and 
simple, — and  Estate  of  Magee,  63  Cal.  414,  seems  to  so  declare  in 
explicit -terms, — then  the  plaintiff  is  entitled  to  all  the  benefits 
of  it,  regardless  of  domicile,  status,  or  extraterritorial  operation 
of  state  laws. 


244  PRIVATE    INTERNATIONAL  LAW. 

The  rules  of  liberal  construction  applicable  to  section  230  are 
likewise  to  be  invoked  in  the  consideration  of  section  1387 ;  and 
the  obvious  purpose  and  intent  of  the  legislature  in  making  this 
enactment  was  to  entitle  illegitimate  children  to  inherit  their  fa- 
ther's estate,  the  same  as  legitimate  children.  Did  the  intestate, 
Blythe,  in  writing,  signed  in  the  presence  of  a  competent  witness, 
acknowledge  that  he  was  the  father  of  the  claimant,  Florence 
Blythe?  Upon  an  inspection  of  the  provision,  we  see  that  the 
word  "acknowledge"  must  be  viewed  in  the  light  of  its  ordinary 
acceptation,  and  it  is  therefore  used  in  exactly  the  same  sense  as 
when  found  in  section  230.  The  acts  required  to  constitute  the 
acknowledgment  are  not  laid  down  in  the  statute.  No  stated 
form  of  acknowledgment  is  there  found  by  which  we  may  be 
guided.  Again,  we  must  take  this  statute  as  we  find  it.  We  are 
not  here  to  construct  a  statute,  but  to  construe  a  statute.  We  can 
neither  interpolate  nor  eliminate,  and  we  are  bound  to  assume  that 
the  legislature  enacted  the  law  as  it  now  stands  with  a  due  com- 
prehension of  the  meaning  of  words  and  of  the  rules  of  statutory 
construction,  and  that  they  incorporated  into  the  act  all  that  was 
intended,  and  that  they  intended  that  effect  should  be  given  to  all 
that  was  found  therein. 

The  writings  relied  upon  in  this  case  to  bring  plaintiff  with- 
in the  provisions  of  the  statute  are  various  letters,  written  at  dif- 
ferent times,  by  Blythe  to  his  daughter  and  her  grandfather, 
which  letters  were  signed  by  him  in  the  presence  of  W.  H.  H. 
Hart,  who  was  a  competent  witness.  These  letters,  as  to  the 
question  of  acknowledgment  of  relationship,  are  of  the  same  gen- 
eral character  and  import,  and  our  investigation  will  be  limited 
to  the  consideration  of  two  of  them,  one  a  letter  to  the  grand- 
father and  the  other  a  letter  to  the  daughter,  either  of  which,  to 
our  minds,  fully  satisfies  the  statute.  He  writes  a  letter  to  the 
plaintiff,  from  which  we  quote : — 

"My  Darling  Child, — You  have  made  your  father  very  happy 

by  writing  to  him  your  little  letter But  I  feel  sad  to  learn 

that  my  own  dear  child  has  been  sick,  and  her  papa  not  being  near 
to  help  her.  You  say  you  wonder  when  you  shall  see  your  dear 
papa.    Well,  my  dear  child,  it  is  about  like  this :  Your  papa  .... 


LEGITIMACY.  245 

After  that  your  papa  will  leave  San  Francisco,  ....  and  have 

his  dear  Florence  with  him  always I  should  like  my  dear 

daughter  to  write  to  her  papa  a  letter  once  every  month 

Grant  is  now  laying  at  my  feet,  while  his  master  is  writing  his  first 

letter  to  his  own  darling  child,  far  away May  God  bless 

you,  my  dear  child.     From  your  loving  father, 

"Thomas  H.  Blythe." 

The  letter  to  the  grandfather  was  read  to  said  Hart,  and 
signed  in  his  presence.  We  quote :  "I  look  at  the  proposed  bap- 
tism of  dear  Flora  as  a  matter  of  very  deep  importance.  After 
full  deliberation,  I  think  it  best  to  have  Flora  brought  up  in  the 
Episcopal  Church, — Church  of  England.  You  will,  therefore, 
please  have  my  daughter  christened  at  once,  and  have  her  named 
after  her  father,  Florence  Blythe." 

There  can  be  but  one  construction  placed  upon  these  letters, 
and  that  is,  they  mean  that  Florence  was  the  daughter  of  Thomas 
H.  Blythe, — "his  own  dear  child."  These  letters  acknowledge 
the  relationship  of  father  and  daughter,  not  hesitatingly  and 
grudgingly,  but  willingly,  gladly,  and  entirely.  When  a  father 
says,  "You  are  my  own  darling  child,"  "I  am  your  father;  you 
shall  be  baptized  in  my  name,  and  loved,  cherished,  and  protected 
always,"  the  subject  is  exhausted,  the  cup  of  acknowledgment  is 
filled  to  overflowing.  If  letters  are  entitled  to  be  used  as  writings 
to  prove  the  fact  of  acknowledgment,  these  letters  prove  that  fact. 
It  was  decided  in  Bailey  v.  Boyd,  59  Ind.  297,  under  a  statute  re- 
quiring the  father  to  acknowledge  his  illegitimate  child  subsequent 
to  marriage,  before  such  child  should  be  held  legitimate,  that  "it 
was  not  necessary  that  this  acknowledgment  should  have 
been  expressed  in  words,  but  it  may  fairly  be  inferred  from  the 
acts  and  conduct  of  the  elder  Bazil."  But  it  is  now  insisted  that 
the  writing  must  be  a  writing  specially  prepared  for  the  sole  ob- 
ject of  making  the  illegitimate  child  an  heir  of  the  father.  The 
adjudications  of  courts  are  not  favorable  to  this  view.  In  the 
case  of  Rice  v.  Efford,  3  Hen.  &  M.  227,  it  was  held  that  the  rec- 
ognition of  the  illegitimate  child  in  a  will  as  the  testator's  child, 
the  will  being  void  as  a  will,  was  sufficient  to  entitle  him  to  inherit. 
Chief    Justice  Tucker,  in    this    connection,  saying    in  Stones  v. 


246  PRIVATE    INTERNATIONAL  LAW. 

Keeling,  reported  in  the  same  volume,  upon  the  following  page: 
"The  act  of  1785,  it  should  be  remembered,  relates  to  the  dispo- 
sition of  property  only,  and  proceeds  to  show  who  shall  be  admit- 
ted to  share  the  property  of  a  person  dying  intestate,  notwith- 
standing any  former  legal  bar  to  a  succession  thereto,  and  in  that 
light  the  law  ought  to  receive  the  most  liberal  construction,  it  be- 
ing evidently  the  design  of  the  legislature  to  establish  the  most 
liberal  and  extensive  rules  of  succession  to  estates  in  favor  of  all 
in  whose  favor  the  intestate  himself,  had  ne  made  a  will,  might 
have  been  supposed  to  be  influenced,  and  here  there  can  be  no 
doubt,  had  he  died  testate,  that  these  daughters  would  have  been 
the  first  object  of  his  care."  Reading  the  present  case  in  the 
light  of  the  evidence  furnished  by  the  record,  there  can  be  no 
doubt  but  if  Blythe  had  died  testate,  Florence  would  have  been 
the  first  object  of  his  care.  In  Succession  of  Fletcher,  11  La. 
Ann.  60,  Henry  Fletcher,  in  an  act  of  manumission  made  before 
a  notary  and  witnesses,  described  the  uarty  enfranchised  by  his 
act  as  his  "natural  daughter,  slave,"  and  such  was  held  to  be  a 
sufficient  acknowledgment  of  paternity,  under  a  statute  which 
declared  that  "the  acknowledgment  of  an  illegitimate  child  shall 
be  made  by  a  declaration  executed  befcre  a  notary  public,  in  the 
presence  of  two  witnesses."  In  that  case  the  court,  citing  French 
authorities,  held:  "It  is  said  that  the  words  'natural  daughter, 
slave,'  were  terms  of  description  foreign  to  the  purpose  of  the 
act,  used  to  manumit  a  slave,  and  not  to  acknowledge  her  pater- 
nity, but  no  form  is  prescribed  for  such  an  acknowledgment,  save 
only  that  the  declaration  be  made  before  a  notary  public,  in  pres- 
ence of  two  witnesses.  If  the  declaration  be  thus  made,  it  seems 
to  be  immaterial  whether  it  be  the  main  object  of  the  act,  or  not." 
In  Remy  v.  Municipality,  1 1  La.  Ann.  1 59,  the  court,  in  referring 
to  the  acknowledgment  of  paternity  made  in  a  will,  said :  "This 
document,  it  is  true,  was  intended  to  be  a  will,  and  has  never  been 
admitted  to  probate  as  such,  but  though  not  binding  as  a  will,  it  is 
certainly  good  as  an  acknowledgment  of  paternity,  made  in  due 
form."  Section  1387  is  essentially  a  statute  of  inheritance,  and 
there  is  no  more  fitting  place  for  the  father  to  recognize  the  moral 
duty  enjoined  upon  him  toward  his  illegitimate  offspring  than  by 


LEGITIMACY.  247 

acknowledging  that  child  in  his  last  will  and  testament  in  accord- 
ance with  the  provisions  of  that  section ;  and  the  fact  that  the  ac- 
knowledgment was  subsidiary  to  the  main  object  and  purpose  of 
the  testator  in  making  the  document  would  not  thereby  weaken 
the  effect  of  the  writing  as  an  acknowledgment. 

Under  the  statute  of  Indiana,  marriage  and  subsequent  ac- 
knowledgment of  the  paternity  of  the  child  by  the  father  consti- 
tuted a  legitimation  of  the  child,  and  in  the  case  of  Brock  v.  State, 
85  Ind.  397,  where  the  father  married  the  woman  and  acknowl- 
edged the  child  for  the  sole  purpose  cf  escaping  a  prosecution  for 
bastardy,  and  with  the  intention  at  the  time  of  the  marriage  to 
immediately  abandon  the  mother  and  child,  it  was  held  that  such 
intentions  were  entirely  immaterial,  and  that  his  acts  created  a 
legitimation. 

In  Crane  v.  Crane,  31  Iowa,  296,  the  question  here  involved 
squarely  presented  itself.  The  statute  of  Iowa  provided  for  le- 
gitimation by  a  recognition  in  writing  of  the  illegitimate  child  by 
the  father.  Two  propositions  upon  which  appellants  insist  are 
directly  decided  against  them  in  that  case.  It  was  held  that  a  for- 
mal writing  of  recognition  was  not  necessary,  but  that  letters  to 
a  friend  would  suffice,  and  it  was  further  held  that  the  references 
to  the  child  in  the  letters  were  sufficient  to  constitute  rec- 
ognition. The  references  by  the  father  in  those  letters  to 
the  child  as  his  child,  while  quite  clear,  are  weak,  vague,  and 
unconvincing  when  compared  to  the  references  upon  the  same 
subject  found  in  the  letters  of  Blythe.  A  majority  of  the  states 
of  this  Union,  and  also  various  countries  of  Europe,  require  the 
illegitimate  child  to  be  recognized  or  acknowledged  by  the  father 
before  legitimation  takes  place,  yet  no  authority  has  been  cited 
from  any  state  or  country  (and  we  therefore  confidently  assume 
there  is  none),  except  the  case  of  Pina  v.  Peck,  31  Cal.  359,  to 
which  our  attention  shall  be  presently  directed,  which  holds  that 
a  formal  recognition  or  formal  acknowledgment  is  necessary,  in 
order  to  constitute  a  legitimation. 

It  is  insisted  that  the  witness  Hart  should  have  subscribed 
his  name  to  the  writing  as  a  witness  thereto,  but  "competent  wit- 
ness" and  "subscribing"  or  "attesting"  witness  are  in  no  sense 


248  PRIVATE   INTERNATIONAL   LAW. 

synonymous  terms.  In  In  the  matter  of  Noble,  124  111.  270,  the 
court  says :  "  'Credible  witnesses,'  as  used  in  the  statute  relating 
to  wills,  has  been  construed,  both  in  England  and  this  country,  to 
mean  competent  zvitnesses;  that  is,  such  persons  as  are  not  legally 
disqualified  from  testifying  in  courts  of  justice  by  reason  of  men- 
tal incapacity,  interest,  or  the  commission  of  crime,  or  other  cause 
excluding  them  from  testifying  generally,  or  rendering  them  in- 
competent in  respect  of  the  particular  subject-matter  or  in  the 
particular  suit."  As  before  remarked,  it  is  not  the  duty  of  the 
court  to  add  to  or  subtract  from  the  words  of  the  statute.  We 
must  construe  it  as  it  stands  enacted.  If  the  legislature  had  in- 
tended such  witness  to  be  a  "subscribing"  or  "attesting"  witness, 
it  was  easy  for  it  to  have  said  so.  Noi  having  so  declared,  it 
would  be  judicial  legislation  for  this  court  to  so  hold  the  statute 
to  be.  Section  1940  of  the  Code  of  Civil  Procedure  provides  that 
a  writing  may  be  proved  by  any  one  who  saw  it  executed,  and  we 
cannot  say  but  that  such  proof  was  contemplated  by  the  legisla- 
ture when  it  framed  this  provision  of  the  statute.  Our  codes 
contain  many  instances  where  the  term  "attesting  witness"  or 
"subscribing  witness'  is  used,  when  the  signature  of  the  witness 
is  required  to  give  life  to  a  written  instrument,  and  we  must  pre- 
sume that  the  legislature  did  not  intend  that  the  writing  should  be 
signed,  when  it  did  not  so  declare.  In  all  the  statutes  of  the  va- 
rious states,  wherever  the  signature  of  a  witness  to  any  document 
is  required,  we  find  the  statute  either  using  the  words  "attesting 
witness"  or  "subscribing  witness."  Under  the  liberal  rules  of 
construction  by  which  this  court  must  be  guided,  and  under  the 
principle  laid  down  by  Chief  Justice  Tucker  in  Stones  v.  Keeling, 
3  Hen.  &  M.  228,  we  are  not  called  upon  to  defeat  this  plaintiff's 
claims  by  holding  that  the  words  "competent  witness,"  as  used 
in  the  statute,  should  be  construed  to  mean  "attesting"  or  "sub- 
scribing" witness.  The  law  of  Pennsylvania  requires  that  the 
will  of  a  married  woman  shall  be  executed  in  the  presence  of  two 
witnesses,  and  the  court  said,  in  Combs' s  Appeal,  105  Pa.  St.  159: 
"Such  witnesses  were  not  required  to  subscribe  their  names  there- 
to." If  more  need  be  said  on  this  behalf,  we  would  suggest  that 
this  statute  was  originally  copied  from  a  statute  of  the  state   of 


LEGITIMACY.  249 

Maine,  which  also  used  the  words  "competent  witness" ;  but  sub- 
sequently the  legislature  of  that  state  amended  the  statute  by 
causing  it  to  read,  "and  attested  by  a  competent  witness,"  that 
legislature  thus  recognizing  not  only  the  fact  that  legislation  was 
necessary  in  order  that  the  witness  should  be  required  to  sign  the 
writing,  but  also  that  it  was  a  matter  with  which  the  legislature 
should  deal  and  with  which  the  courts  had  no  concern.  It  is  a 
familiar  principle  of  statutory  construction  that  a  statute,  taken 
and  enacted  from  the  laws  of  another  state  carries  with  it  the  con- 
struction given  to  it  by  the  laws  of  that  state.  The  amendment 
made  to  the  statute  of  Maine  clearly  indicates  what  construction 
was  there  given  this  provision  of  section  1387. 

In  speaking  as  to  the  construction  of  statutes  relating  to  the 
form  and  manner  of  making  wills,  the  court  said  in  In  the  Mat- 
ter of  Simpson,  56  How.  Pr.  126:  "The  restrictions  which  from 
motives  of  prudence  are  thrown  around  the  right  should  be  con- 
strued liberally  in  favor  of  the  testament,  and  forms  should  not 
be  required  which  the  legislature  has  not  plainly  prescribed." 
The  question  as  to  the  wisdom  and  policy  of  this  provision  is  not 
a  matter  for  our  consideration.  This  court  is  not  the  forum  to 
administer  relief  for  evil  in  this  law,  if  evil  there  be.  If  the  law 
is  not  what  it  should  be,  let  the  legislature  follow  the  course 
adopted  by  the  state  from  which  it  took  the  law,  and  amend  the 
statute  in  this  regard,  as  that  state  has  done.  As  the  law  is  now 
written,  compliance  has  been  had  with  it,  and  having  determined 
that  matter,  the  investigation  is  concluded,  as  far  as  this  court  is 
concerned. 

It  is  further  insisted  that  the  letters,  when  placed  in  the  cru- 
cible by  which  they  are  to  be  tested,  ar~  found  wanting,  because 
it  is  said  that  the  writing  must  be  complete  in  itself;  that  is,  it 
must  show  upon  its  face  that  the  child  is  an  illegitimate  child,  and 
that  it  was  signed  in  the  presence  of  a  competent  witness.  We 
find  nothing  in  the  law  subjecting  the  writing  to  any  such  test. 
The  statute  does  not  require  it.  Such  recitals  would  not  add  one 
jot  to  the  weight  and  credit  to  be  given  to  the  writing  by  the  court, 
if  they  were  there  found  stated.  They  would  have  no  more  weight 
and  be  of  no  more  avail  in  arriving  at  a  final  determination  of  the 


250  PRIVATE    INTERNATIONAL  LAW. 

merits  of  the  cause,  than  if  Blythe  had  said  in  the  writing,  "I  made 
this  writing,  and  the  facts  therein  stated  are  true."  A  statement 
in  the  writing  that  it  was  signed  in  the  presence  of  a  competent 
witness  could  not  be  evidence  of  that  fact ;  no  more  would  a  refer- 
ence in  the  writing  to  the  child  as  an  illegitimate  child  establish 
such  illegitimacy.  In  Grant  v.  Mitchell,  83  Me.  26,  the  court,  in 
speaking  to  this  question,  said :  "In  either  case,  it  must  first  ap- 
pear that  the  child  is  illegitimate.  The  statute  does  not,  nor  does 
it  purport  to,  act  upon  any  other;  nor  does  the  subsequent  mar- 
riage, adoption,  or  acknowledgment  have  any  tendency  to  prove 
this  fact.  Whatever  may  be  the  effect  of  the  acknowledgment  in 
showing  the  paternity  of  one  proved  to  be  illegitimate,  it  cannot 
be  taken  as  proof  of  the  illegitimacy."  Blythe,  in  writing,  ac- 
knowledged himself  to  be  the  father  of  Florence  Blythe ;  Florence 
Blythe  is  an  illegitimate  child;  therefore,  Blythe  acknowledged 
himself  to  be  the  father  of  an  illegitimate  child.  This  logic  is 
unassailable,  and  no  sound  reason  can  be  adduced  why  the  ac- 
knowledgment should  contain  a  declaration  of  bastardy. 

Bearing  upon  both  branches  of  this  case,  as  to  the  policy  of 
the  law,  and  the  true  principle  of  construction  to  be  invoked,  we 
quote  the  apt  language  of  Beatty,  C.  J.,  in  the  Jessup  case  (81 
Cal.  435),  and  the  views  there  expressed  in  no  wise  conflict  with 
the  principles  declared  in  the  main  opinion  of  the  court.  He 
says :  "The  only  argument  that  can  be  made  against  his  claim  to 
inherit  his  father's  estate  rests  upon  a  strict  construction  of  the 
statutes,  remedial  in  their  nature,  designed  to  secure  to  innocent 
unfortunates  in  his  situation  a  just  share  of  the  rights  to  which 
they  are  by  nature  as  fully  entitled  as  are  legitimate  offspring. 
No  doubt  a  strong  argument  can  be  built  qn  this  basis  of  strict 
construction  against  the  decision  of  the  superior  court.  But  I 
adhere  to  the  view  so  strongly  put  and  so  satisfactorily  main- 
tained by  Justice  Works  in  his  opinion,  that  in  cases  of  this  kind 
the  only  strictness  required  is  in  proof  of  paternity.  That  being 
satisfactorily  established  by  plenary  proof,  I  think  courts  should 
lean  strongly  in  favor  of  a  finding  that  the  father  of  an  illegiti- 
mate child  has  done  what  every  honest  and  humane  man  should 
be  not  only  willing  but  eager  to  do,  and  what  a  just  law  would 


LEGITIMACY.  251 

compel  the  unwilling  to  do.  I  also  think  it  a  wholly  unauthorized 
construction  of  the  statute  to  hold  that  the  acts  of  recognition,  ac- 
knowledgment, etc.,  necessary  to  legitimize  a  natural  child  should 
be  performed  with  the  express  intention  on  the  part  of  the  father 
of  accomplishing  that  object.  If  the  acts  are  in  themselves  such 
as  the  statute  prescribes,  I  think  they  confer  legitimacy  without 
any  reference  to  the  intent  with  which  they  are  performed.  There 
is  no  danger  to  morality  in  recognizing  the  natural  rights  of  ille- 
gitimate children  as  against  their  fathers,  or  other  claimants  of 
their  estates,  and  there  is  no  danger  of  encouraging  the  fabrica- 
tion of  spurious  claims  so  long  as  strict  proof  of  paternity  is  in- 
sisted upon." 

The  foregoing  views  are  not  in  harmony  with  the  principles 
declared  in  the  elaborate  opinion  of  Mr.  Justice  Rhodes  in  the 
case  of  Pina  v.  Peck,  31  Cal.  359,  and  upon  which  decision  appel- 
lants in  the  main  rest  this  branch  of  their  case.  It  is  not  our  in- 
tention to  analyze  the  soundness  of  the  legal  principles  there  laid 
down,  otherwise  than  may  have  been  incidentally  done  in  what 
we  have  already  said.  Still,  we  might  be  allowed  to  say,  no  au- 
thority of  courts  or  men  learned  in  the  law  is  presented  in  that 
opinion  to  support  the  views  there  declared,  although,  as  we  have 
seen,  authority  is  not  wanting  to  the  contrary.  Pina  v.  Peck,  31 
Cal.  359,  is  not  authority  in  this  case,  for  two  sufficient  reasons : 

1.  But  four  justices  participated  in  the  decision  (Justice  Sander- 
son not  taking  part),  and  two  of  these  justices  concurred  alone 
in  the  judgment.  This  fact  entirely  destroys  the  effect  of  the  de- 
cision as  an  authority  upon  any  and  all  matters  therein  discussed. 

2.  Justice  Rhodes  says  at  the  very  inception  of  his  opinion:  "It 
is  contended  by  the  defendants  that  this  provision  of  the  statute 
is  in  derogation  of  the  common  law,  and  must,  therefore,  be 
strictly  construed.  That  doctrine  was  announced  and  applied  by 
the  court  in  the  estate  of  Samuel  San  ford,  and  we  are  of  opinion 
that  the  ruling  is  correct,  beyond  a  doubt.  As  a  consequence  re- 
sulting from  the  operation  of  this  rule,  the  acknowledgment  must 
conform  to  the  statute,  and  be  complete  in  itself;  that  is  to  say, 
it  must  not  require  the  aid  of  extrinsic  evidence.  When  the  par- 
ties are  identified,  and  the  instrument  in  writing  is  produced  and 


252  PRIVATE   INTERNATIONAL   LAW. 

proven,  the  court  must  be  able  to  say  from  the  instrument  that 
the  person  who  signed  it  thereby  acknowledged  himself  to  be  the 
father  of  the  illegitimate  child  therein  named."  Thus  this  de- 
cision was  expressly  based  upon  strict  and  rigid  rules  pi  statutory 
construction,  and  as  we  have  seen,  those  rules  of  construction  have 
now  been  entirely  displaced,  as  to  the  codes,  by  rules  liberal  and 
humane  in  their  character.  That  decision  being  expressly  based 
upon  strict  rules  of  construction,  and  strict  rules  of  construction 
now  being  abolished,  it  cannot  be  said  to  be  binding  authority  in 
a  case  which  we  are  called  upon  to  decide  by  an  application  of 
statutory  rules  of  liberal  construction.  It  is  insisted  that  the  fol- 
lowing rule  of  construction,  as  declared  by  Judge  Cooley  in  his 
Constitutional  Limitations  (p.  66),  must  be  invoked  in  this  case, 
to  wit:  "It  has  ever  properly  been  held  that  the  legislature,  by 
enacting  without  material  alteration  a  statute  which  has  been 
judicially  expounded  by  the  highest  court  of  the  state,  must  be 
presumed  to  have  intended  that  the  same  words  should  be  re- 
ceived in  the  new  statute  in  the  sense  which  had  been  attributed 
to  them  in  the  old."  There  can  be  no  question  that  if  the  rules 
of  statutory  construction  were  the  same  now  as  when  Pina  v. 
Peck,  31  Cal.  359,  was  decided,  and  the  views  there  expressed  had 
been  adopted  by  a  majority  of  the  court,  this  principle  of  the  con- 
struction of  statutes  would  have  controlling  effect  in  this  case, 
but  it  is  equally  true  that  if  the  rules  of  construction  have  been 
changed,  such  principle,  in  the  very  nature  of  things,  could  not 
maintain. 

For  the  foregoing  reasons,  let  the  judgment  be  affirmed. 

Paterson,  J.,  and  Sharpstein,  J.,  concurred. 


GUARDIANS.  253- 

GUARDIANS. 

IN  RE  WILLIE  RICE,  42  MICH.,  528,  (1880). 

Habeas  corpus.     Submitted  Jan.  20.     Denied  Jan.  21. 

Conely  &  Lucking  for  petitioner.     An  unauthorized  appoint- 
ment of  a  guardian  by  the  probate  court  is  absolutely  void,  and 
may  be  attacked  collaterally  or  by  r.  motion  to  vacate,  Sears  v. 
Terry,  26  Conn.,  273;  Dorman  v.  Ogbourne,  16  Ala.,  759;  Lacy 
v.  William,  27  Mo.,  280;  Herring  v.  Goodson,  43  Miss.,  392; 
Townsend  v.  Kendall,  4  Minn.,  412 ;  Wright  v.  Wright,  24  Mich., 
180;  People  v.  Dawell,  25  Mich.,  247;   comity,  if   not   absolute 
right,  requires  that  the  foreign  guardian  have  the  child.     Whar- 
ton's Confl.  Laws,  §§  259,  263 ;  3  Redf .  Wills,  448,  450 ;  Schou- 
ler's  Dom.  Rel.,  443;  Woodworth  v.  Spring,  4  Allen,  321;  Nu- 
gent v.  Vetsera,  L.  R.  2  Eq.,  704;  the   right   of  the   domiciliary 
guardian  of  an  infant  of  tender  age  is  as  nearly  absolute  as  is  that 
of  a  parent,  and  should  prevail,  except  in  those  cases  of  abuse  or 
misconduct  where,  under  similar  circumstances,  the  right  of  a 
father  would  be  interfered  with,  Di  Savini  v.  Lonsada,  18  W.  R., 
425 ;  Townsend  v.  Kendall,  4  Minn.,  419 ;  Wharton's  Confl.  Laws, 
§§  262-263 ;  a  man's  domicile  continues  till  a  new  one  is  acquired, 
Neif  v.  Neff,  1  Binn.,  351 ;  Fisher's  Dig.,  tit.  Domicile,  col.,  9444; 
Oilman  v.  Oilman,  52  Me.,  165 ;  Phillimore  on  Domicile,  21 ;  the 
doctrine  that  where  one  dies  in  journeying  towards  an  intended 
domicile,  he  loses  the  old  domicile,  is  not  at  all  sustained  by  the 
facts  of  the  case  in  which  the  doctrine  had  its  origin,  Munroe 
v.  Douglas,  5  Maddock,  246 ;  and  is  severely  criticised  in  the  fol- 
lowing:  Harvard  College  v.  Gore,  5  Pick.,  374,  375;  Somerville 
v.  Somerville,  5  Vesey,  786-7;  Munro  v.  Munro,  7  CI.  &  F.,  876; 
Bell.,  v.  Kennedy,  1  L.  R.  Scotch  &  Div.  App.,  307 ;  actual  pres- 
ence within  the  territory  is  essential  to  the  acquisition  of  a  new 
domicile,    Sears    v.  Boston,    1    Met.,  250;    Abington    v.  North 
Bridgewater,  23  Pick.,  170;  Thorndike  v.  Boston,  1  Met.,  242;  in 
a  suit  for  divorce  under  a  statute  requiring  the  complainant  to  be 
a  resident  of  Massachusetts  at  the  time  the  cause  of  divorce  oc- 
curred, it  was  held  that  where  the  parties  left  Massachusetts  to 
remove  to  Colorado,  and  stopped  four  months  in  Philadelphia  on 


254  PRIVATE  INTERNATIONAL   LAW. 

the  way,  at  which  place  the  cause  of  divorce  occurred,  that  the 
complainant  was  domiciled  in  Massachusetts,  Shazv  v.  Shaw,  98 
Mass.,  158;  the  domicile  of  an  infant  is  that  of  its  father,  and  an 
infant  cannot  of  its  own  motion  change  its  domicile,  Schouler's 
Dom.  Relations,  412 ;  School  Directors  v.  James,  2  W.  &  S.,  570. 

T.  A.  Wilson  and  Austin  Blair  against  the  petition. 

Campbell,  J.  A  habeas  corpus  was  issued  in  this  case  on 
behalf  of  a  Pennsylvania  guardian  to  obtain  possession  of  the  in- 
fant over  whom  a  guardian  had  been  appointed  by  the  probate 
court  of  Jackson  county  before  any  appointment  was  made  in 
Pennsylvania. 

The  parents  of  the  child,  having  formerly  lived  in  Philadel- 
phia, determined  to  change  their  residence  and  left  that  city  with 
their  son  to  go  to  Kansas  to  reside.  They  were  both  killed  and 
the  child  injured  by  a  railroad  collision  at  Jackson  last  October. 
The  boy,  who  is  but  three  years  old,  was  cared  for  at  that  city 
until  an  aunt,  Mary  C.  Rogers,  his  mother's  sister,  came  on  and 
has  since  taken  care  of  him,  and  was  in  December  last  appointed 
guardian.  Afterwards  an  uncle  in  Philadelphia  applied  to  the 
Orphan's  Court,  and  a  corporation,  which  is  apparently  created 
for  trust  purposes,  was  made  guardian  cf  the  estate,  and  an  aunt, 
his  father's  sister,  Mrs.  Ellen  Taney,  appointed  guardian  of  the 
person. 

Our  laws  usually  contemplate  the  appointment  of  a  guardian 
who  has  custody  of  the  estate,  whoever  may  have  the  custody  of 
the  person,  and  provide  for  no  corporation  guardianships. 

All  of  the  infant's  property  is  now  in  Michigan,  and  his  chief 
interest  is  supposed  to  be  such  compensation  as  may  be  obtained 
for  his  own  injuries  and  the  death  of  his  parents. 

Our  laws  contemplate  that  guardians  may  be  appointed  for 
infants,  whatever  may  be  their  residence,  who  have  property  in 
this  State,  and  do  not  recognize  any  absolute  right  in  foreign 
guardians  to  be  recognized.  Whatever  respect  is  paid  them 
springs  from  comity  and  not  from  law,  and  is  therefore  not  a 
matter  of  right. 

If  an  infant,  after  having  a  guardian  appointed  at  his  domi- 
cile, where  he  has  been  in  that  guardian's  personal  custody,  should 


GUARDIANS.  255 

be  taken  or  found  elsewhere,  great  respect  should  be  paid  to  the 
claims  of  such  guardian,  which  would  probably  in  most  cases  be 
considered  as  paramount. 

But  where,  on  the  other  hand,  the  foreign  appointment  se- 
cures no  control  over  the  infant's  estace,  and  has  been  created  in 
a  jurisdiction  from  which  he  was  personally  absent,  the  case  is 
materially  different. 

It  may  or  may  not  be  that  Philadelphia  is  to  be  regarded  in 
'aw  as  technically  the  domicile  of  the  parents  and  infant,  inas- 
much as  they  were  still  on  the  road  to  another,  and  had  not  reached 
it.  Upon  this  we  express  no  opinion,  and  assume  that  it  may 
be.  But  for  purposes  of  comity,  the  domicile  is  chiefly  respected 
because  it  is  in  fact  the  home ;  and  where  there  has  been  a  de- 
parture with  no  design  of  returning,  the  legal  character  of  the  old 
domicile  does  not  make  it  so  controlling  in  matters  of  policy  as 
it  would  be  under  other  circumstances,  although  for  other  mat- 
ters it  may  possibly  control. 

In  the  present  case  there  can  be  no  doubt  that  the  Jackson 
probate  court  had  power  to  appoint  the  guardian,  and  the  infant's 
interests  are  also  chiefly  here,  which  made  it  a  very  proper  thing 
to  make  some  appointment  here,  whatever  might  be  done  else- 
where. The  Michigan  guardian  is  as  near  a  relative  as  any  other 
living  relative,  and  the  Pennsylvania  guardian  has  not  as  full 
powers.  There  is  nothing  in  the  case  which  indicates  that  the 
latter  should  be  preferred,  and  we  do  not  feel  that  there  is  any 
duty  imposed  upon  us,  under  the  circumstances,  of  changing  the 
custody. 

The  other  lustices  concurred. 


IN  RE  STOCKMAN,  71  MICH.  180,  (1888). 

Sherwood,  C.  J.  Lucile  Stockman  is  now  nine  years  of  age, 
and  resides  with  her  maternal  grandparents  in  xJort  Huron,  who 
are  her  guardians  in  this  State,  having  received  their  appointment 
as  such  on  October  19,  1885.  The  paternal  grandparents  reside 
in  Washington,  D.  C,  and  were    duly    appointed    testamentary 


256  PRIVATE   INTERNATIONAL  LAW. 

guardians  for  Lucile  in  that  city  on  September  4,  1885.  The 
child's  father  and  mother  are  both  dead.  The  testamentary 
guardians  are  the  petitioners  in  this  case,  and  they  seek  to  recover 
by  the  writ  of  habeas  corpus  this  infant  girl  from  the  Michigan 
guardians.  Mrs.  Stockman,  the  mother  of  Lucile,  died  in  the 
city  of  Washington  on  November  24,  1879,  and  Hugh  R.  Stock- 
man, the  father,  died  in  the  same  city  en  August  23,  1885. 

These  parents  were  married  in  April,  1877,  at  Port  Huron, 
Mrs.  Stockman  being  only  about  16  years  of  age  when  married. 
They  remained  in  Port  Huron  until  some  time  in  July,  1877. 
There  were  some  unpleasant  things  occurred  in  the  manner  the 
husband  brought  about  the  marriage,  and  it  only  need  be  said 
they  were  of  a  character  not  calculated  to  greatly  increase  the 
estimate  which  would  most  likely  be  accorded  to  him  by  a  well- 
ordered  and  virtuous  community.  The  wife's  parents  were  a 
well-to-do  and  respectable  family,  who  had  resided  in  Port  Huron 
more  than  20  years,  reputable  people  in  good  standing.  While 
in  Port  Huron  the  newly-married  couple  boarded  at  the  Huron 
House,  and  Mrs.  Stockman  was  allowed  to  visit  her  mother  but 
once,  and  then  for  the  purpose  of  getting  her  trunk  before  they 
left  the  city,  and  the  mother  never  saw  Mrs.  Stockman  again  but 
once  until  a  few  hours  before  she  died.  They  lived  during  their 
marriage  in  Georgia  and  in  Washington. 

After  the  birth  of  the  child,  Lucile,  which  occurred  while 
they  were  in  Georgia,  the  mother  was  allowed  to  come  to  Port 
Huron  for  a  few  weeks  in  July  and  August,  1879,  and  then  re- 
turned to  Washington,  where  she  died.  Her  mother  was  tele- 
graphed to  go  to  Washington  about  48  hours  before  Mrs.  Stock- 
man died,  and  she  was  permitted  to  have  the  company  of  Mrs. 
Shaw,  her  mother,  about  24  hours  before  she  passed  away.  Be- 
fore she  died,  Mrs.  Stockman  asked  her  husband  to  allow  her 
mother,  Mrs.  Shaw,  to  take  Lucile  and  keep  her,  and  Mr.  Stock- 
man promised  her  that  he  would  do  so.  And  after  the  funeral 
he  told  Mrs.  Shaw  of  the  request  his  wife  had  made,  and  the  prom- 
ise he  gave  her,  and  then  and  there  urged  Mrs.  Shaw  to  take  the 
child,  and  do  as  his  wife  requested ;  and  upon  her  suggestion  that 
she  would  be  willing  to  take  her,  and  bring  her  up,  but  was  afraid 


GUARDIANS.  257 

he  might  afterwards  change  his  mind,  and  take  the  child  from 
her,  he  affirmed  he  would  not,  saying : 

"Oh  no,  mother.  You  may  iiave  no  fear.  You  take  the 
child  and  bring  her  up  pure  and  virtuous,  like  her  mother,  and 
that  is  all  I  ask." 

Mrs.  Shaw  then  promised  him  she  would  take  her  as  re- 
quested by  her  daughter  and  him,  and  bring  up  the  child  as  one 
of  her  own. 

Mr.  Stockman  seemed  very  poor  at  this  time.  The  only  home 
he  had  ever  furnished  for  his  wife  and  child  was  in  the  family 
of  his  father  and  mother,  and  at  their  house;  and  after  paying 
sundry  bills  for  medicine  for  Mrs.  Stockman  before  she  died,  and 
lending  him  $50  to  help  pay  his  wife's  funeral  expenses,  she  took 
the  child  Lucile,  and  brought  her  to  her  home  in  Port  Huron, 
where  she  and  her  husband  have  cared  for,  supported,  maintained, 
and  educated  her  ever  since. 

When  Mrs.  Shaw  took  the  child  she  was  about  17  months 
old,  and,  the  evidence  shows,  poor  and  sickly.  She  is  now 
healthy,  and  enjoying  her  home  and  the  family  of  her  grandpar- 
ents, where  there  are  several  children  associates.  She  is  also  re- 
ceiving such  Christian  education  and  other  advantages  as  a  large 
and  prosperous  Michigan  city  affords ;  and  the  testimony  is  to  the 
effect  that  she  desires  to  remain  with  her  grandparents  in  Michi- 
gan, where  she  is  contented  and  happy,  and  does  not  want  to  go 
and  live  with  her  paternal  grandparents  in  Washington,  and  the 
maternal  grandparents  are  anxious  to  have  her  remain  with  them, 
and  are  willing  to  maintain,  educate,  and  support  her  from  their 
cwn  means,  and  at  their  own  expense. 

In  the  month  of  August,  1882,  and  after  the  child  had  been 
at  Port  Huron  about  3  years,  Mr.  Stockman  visited  his  daughter 
at  Mr.  and  Mrs.  Shaw's,  and,  after  being  there  a  few  days,  said 
he  wanted  to  take  her  to  Washington  with  him  to  spend  the  win- 
ter, and  Mrs.  Shaw  could  have  her  again  in  the  spring,  and  was 
allowed  to  take  her  under  his  promise  that  the  grandmother  could 
have  her  again  in  the  spring.  Mr§.  Shaw  went  for  her  in  the 
month  of  April,  1883,  when  Mr.  Stockman  made  trouble  in  get- 
ting her,  and  finally  would  not  allow  Mrs.  Shaw  to  bring  her  away 


258  PRIVATE   INTERNATIONAL   LAW. 

unless  she  would  sign  a  writing,  agreeing  to  return  the  child  to 
him  whenever  he  should  call  for  her.  Lucile  was  at  the  time  not 
well,  and  these  conditions,  demanded  of  Mrs.  Shaw  before  she 
could  gain  possession  of  the  child,  greatly  embarrassed  her,  and, 
feeling  that  she  could  not  leave  her  in  Washington,  she  signed 
an  instrument  purporting  to  be  of  the  effect  stated.  She  then 
took  the  little  girl,  and  returned  to  Port  Huron  with  her.  Mrs. 
Shaw  avers  that  she  was  compelled  to  sign  said  written  agree- 
ment before  she  could  get  away  the  child,  who  was  then  sick,  and, 
fearing  she  might  die  if  allowed  to  remain  there,  she  was  ready 
to  do  almost  anything  to  get  her  away,  and  she  was  thus  com- 
pelled, at  the  risk,  as  she  believes,  of  the  life  of  the  child,  and 
against  her  will,  to  sign  said  written  instrument. 

After  their  return  to  Port  Huron,  Lucile  soon  recovered  her 
health,  and  she  was  permitted  to  remain  undisturbed  with  Mrs. 
Shaw  until  on  or  about  September  18,  1883,  when  Mr.  Stockman 
came  to  the  house  of  Mrs.  Shaw,  in  Port  xluron,  and  unceremo- 
niously took  the  child  away  with  the  avowed  purpose  of  taking 
her  to  Washington.  This  he  was  not  allowed  to  do  by  Mr.  Shaw, 
who  found  him  with  the  child  in  the  city,  making  preparation  to 
leave  with  her.  Shaw  took  her  from  Mr.  Stockman,  and  went 
home  with  her.  Mr.  Stockman  thereupon  applied  to  the  circuit 
court  for  the  county  of  St.  Clair  for  a  writ  of  habeas  corpus  to 
recover  his  child.  Mr.  and  Mrs.  Shaw  appeared,  and  filed  their 
answer,  contesting  his  right  to  Lucile  upon  the  following  grounds : 

1.  That  by  reason  of  the  request  of  the  dying  mother,  and 
consummated  after  her  death  by  the  agreement  of  Mr.  Stockman 
with  Mrs.  Shaw,  that  she  should  have  the  care  and  custody  of  the 
child  during  her  infancy,  she  was  entitled  to  take  her  away. 

2.  That  Mr.  Stockman  was  an  unfit  person  to  have  the  care, 
companionship,  custody,  or  education  cf  the  child;  that  he  was 
intemperate  in  his  habits ;  habitually  used  intoxicating  liquor ; 
that  he  had  an  ungovernable  temper,  and  could  not  control  his 
passions,  and  was  a  man  of  improper  and  immoral  habits. 

3.  That  he  was  extremely  cross  and  cruel  in  his  conduct  to- 
wards Lucile,  and  without  any  sufficient  cause  would  frequently 
inflict  upon  her  severe  blows,  and  cruel  and  improper  punishment. 


GUARDIANS.  259 

4.  That  he  improperly  treated  the  child  when  sick ;  compelled 
and  forced  her  to  take  medicine  of  his  own  preparation,  and  con- 
trary to  the  advice  of  physicians. 

5.  That  he  held  improper  relations  and  intercourse  with  bad 
women,  and  allowed  them  in  his  own  rooms,  in  the  presence  of 
Lucile ;  and  that  he  is  financially  unable  to  support  the  child ;  that 
he  had  no  home  of  his  own,  was  out  of  health,  and  was  out  of 
business. 

The  circuit  judge  ordered  the  case  tried  before  a  jury,  and 
upon  the  first  trial  the  jury  disagreed,  r:nd  upon  the  second  trial, 
which  occurred  about  a  month  thereafter,  the  jury  rendered  a 
verdict  that  Mr.  and  Mrs.  Shaw  should  retain  the  custody  of  the 
child.  This  verdict  was  afterwards  sought  to  be  set  aside  in  the 
circuit  court,  but  the  motion  was  denied  by  the  circuit  judge  on 
May  27,  1884. 

On  June  23,  1884,  Mr.  Stockman  filed  his  petition  in  this 
Court,  and  obtained  a  writ  of  habeas  corpus  to  obtain  his  daugh- 
ter. The  application  was  substantially  upon  the  same  grounds 
as  had  been  urged  in  the  circuit  court,  and  was  heard  upon  the 
same  testimony,  with  some  unimportant  additions,  in  this  Court 
on  October  18,  1884.  The  Court,  being  equally  divided  in  opin- 
ion as  to  what  should  be  done  in  the  premises,  caused  to  be  entered 
the  following  order  on  January  30,  1885 : 

"In  this  case,  the  Court  being  equally  divided  in  opinion  as 
to  the  judgment  that  should  be  entered,  the  clerk  is  directed  to 
make  an  entry  to  that  effect,  and  the  writ  is  dismissed  for  that 
cause,  and  without  any  decision  upon  the  rights  of  the  parties, 
and  without  prejudice  either  to  any  existing  right  or  adjudica- 
tion, or  to  any  future  remedy." 

Here  the  matter  was  allowed  to  rest  until  Mr.  Stockman 
died,  in  August,  1885.  Previous  to  his  death,  which  occurred  at 
his  father's  in  the  city  of  Washington,  and  on  February  20,  1885, 
he  made  a  last  will,  in  which  he  appointed  his  father  and  mother 
guardians  of  Lucile.  They  qualified,  and  letters  of  testamentary 
guardianship  were  duly  issued  to  them  in  the  orphans'  court  of 
the  District  of  Columbia  on  September  4,  188  c;.  In  and  by  the 
will  the  testator  directs  his  guardians  to  obtain  the  legal  control  of 


260  PRIVATE   INTERNATIONAL   LAW. 

Lucile,  and,  if  necessary  to  that  end,  they  are  directed  to  use  al! 
his  property ;  and  if  they  do  not  succeed,  then  he  gives  his  prop- 
erty to  his  father  and  mother,  if  living,  and,  if  not,  he  gives  it  in 
equal  shares  to  his  brother  and  sisters,  and  recites  in  his  will  that 
Mr.  and  Mrs.  Shaw  had  committed  perjury  in  their  endeavors 
to  retain  the  child. 

In  pursuance  of  and  in  accordance  with  the  requirements  of 
this  will,  Mr.  Andrew  H.  Stockman  and  Anna  B.  Stockman,  his 
wife,  the  father  and  mother  of  the  testator,  applied  for  and  ob- 
tained a  writ  of  habeas  corpus  from  this  Court  to  obtain  the  cus- 
tody of  their  testamentary  ward,  Lucile,  on  February  8,  1887. 

The  petition  for  the  writ  does  not  vary  materially  in  its  state- 
ment of  the  facts  from  those  contained  in  the  other  application, 
except,  in  addition  thereto,  it  states  that  Mr.  and  Mrs.  Shaw  re- 
fused to  deliver  up  Lucile  to  the  testamentary  guardians  when 
requested ;  and  that  at  the  time  the  testator  died  a  large  sum  of 
money  was  due  him  for  military  service,  and  which  now  belongs 
to  Lucile ;  and  that  he  had  some  personal  property  besides,  all  of 
which  the  testamentary  guardians  had  secured  and  then  had ;  and 
that,  under  the  decision  of  the  pension  office,  all  of  the  pension 
moneys  to  which  Lucile  is  entitled  on  account  of  the  service  of 
her  father  are  now  being  paid  to  the  testamentary  guardians ;  that 
such  pension  money  and  personal  estate  are  sufficient  to  support 
the  ward ;  and,  further,  that  they  are  able,  and  have  property 
enough,  to  support  her,  if  necessary,  aside  from  the  pension 
money;  and  that  the  respondents,  Mr.  and  Mrs.  Shaw,  have 
changed  the  name  of  Lucile  from  Stockman  to  Shaw,  for  the  pur- 
pose of  preventing  identification,  and  have  had  her  christened  by 
that  name. 

The  respondents  file  their  answer  to  the  petition,  which  is  in 
substance  the  same  as  that  made  to  the  other  writs  issued,  with 
the  further  statements  that  the  said  Anna  B.  Stockman  allowed 
the  deceased  in  his  life-time  to  live  and  cohabit  at  her  house  with 
a  harlot.  They  deny  that  they  have  changed,  or  attempted  to 
change,  the  name  of  the  child,  and  aver  that  they  are  Lucile's 
duly-appointed  guardians  in  thisState.  The  answer  then  pro- 
ceeds as  follows : 


GUARDIANS.  261 

"These  respondents  further  state,  the  said  Francis  H.  Shaw 
upon  information  and  belief,  and  the  said  Marietta  H.  Shaw  from 
her  knowledge  acquired  as  aforesaid,  that  the  petitioners  are  un- 
fit persons  to  have  the  care  and  custody  of  the  little  girl  Lucile 
Stockman,  and  that  by  reason  of  the  great  change  that  would  take 
place  in  her  mode  of  living,  and  by  reason  of  the  great  cruelty 
which  would  be  practiced  towards  the  said  infant  by  the  said 
Anna  B.  Stockman,  they  fear  that  her  life  would  be  in  danger, 
and  that  she  would  live  but  a  short  time;  and  upon  information 
and  belief  they  state  that  the  said  petitioners  are  persons  without 
any  moral  restraint  whatever ;  and  that  in  matters  of  religion  they 
are  without  any  attachment  to  any  Christian  or  moral  community 
whatever;  and  that  their  surroundings  and  education  would  taint 
and  destroy  the  good  moral  character  of  said  infant  Lucile ;  and 
they  ask  the  protection  of  this  Court  for  such  child ;  and  that  the 
facts  and  circumstances  of  the  petition,  and  this  answer,  may  be 
inquired  into;  and  that  by  the  judgment  of  this  Court  the  prayer 
of  the  petitioners  may  be  denied. 

"These  respondents  further  state,  upon  information  and  be- 
lief, that  the  only  object  and  purpose  which  the  petitioners  have 
in  obtaining  the  custody  of  said  child  is  to  enable  them  to  have 
some  pretext  for  expending  whatever  money  the  said  infant  may 
be  entitled  to  under  the  provisions  of  the  act  of  Congress  of  the 
United  States  and  under  the  provisions  of  the  will,  as  set  forth 
in  said  petition ;  and  they  state  ,upon  information  and  belief,  that 
there  is  no  adequate  security  filed  in  any  court  in  Washington  to 
protect  the  estate  of  said  infant  from  loss  or  speculation  in  case 
her  custody  and  control  should  be  transferred  to  the  petitioners ; 
and  they  refer  to  the  affidavit  hereto  attached  as  a  part  of  this 
answer." 

The  respondents  also  submit  all  the  testimony  upon  the  for- 
mer trial,  when  the  matter  was  before  ihe  jury.  Such  is  substan- 
tially the  issue  as  made  up  before  us  now  for  consideration. 

The  superior  rights  of  a  father  to  his  child  to  those  of  the 
grandparents,  all  things  else  being  equal,  are  no  longer  before  us. 
It  has  now  come  to  the  single  question  and  consideration  whether 
the  paternal  or  maternal  grandparents  shall  have  the  care  and  cus- 


262  PRIVATE   INTERNATIONAL   LAW. 

tody.  So  far  as  the  desires  of  the  parents  are  concerned,  the 
father's  last  wish  was  that  his  parents  might  have  such  care,  and, 
so  far  as  the  mother's  feeling  in  the  matter  is  concerned,  it  was 
her  dying  request  that  her  parents  might  have  the  care  and  train- 
ing of  her  infant  daughter,  and  at  that  time  such  were  his  wishes 
in  the  matter.  I  have  reviewed  all  the  evidence  in  this  case,  and, 
after  applying  to  it  all  the  knowledge  and  experience  I  possess,  I 
must  say  that  at  this  time,  when  he  was  stirred  up  by  all  the  feel- 
ings of  his  better  nature,  and  they  had  so  far  got  control  of  his 
passions  and  prejudices  as  to  allow  his  reason,  his  judgment,  and 
affections  to  dictate  what,  under  all  the  circumstances,  would  be 
best  for  the  future  welfare  of  his  little  child,  in  his  wishes  then 
expressed  and  the  promise  he  gave  to  his  dying  wife,  and  the  re- 
quest he  made  of  her  mother  that  she  would — 

"Take  the  child  and  bring  her  up  pure  and  virtuous,  like  her 
mother,"  saying,  "That  is  all  I  ask," — 

He  gave  expression  to  the  true  sentiments  of  his  heart,  ap- 
proved by  his  reason  and  his  judgment ;  and  it  was  the  wisest  and 
best  conclusion  he  could  have  possibly  reached,  and  in  my  opinion 
it  ought  not  now  to  be  disturbed. 

The  child  is  a,  girl.  That  mother  knew  better  than  any  one 
else  of  its  care  and  many  wants  and  requirements  through  the 
period  of  its  infancy  and  childhood,  during  a  motherless  future, 
and  she  knew  that  no  one  else  could  have  the  patience  and  affec- 
tion for  the  little  one,  and  minister  to  those  wants,  to  the  extent 
of  her  own  mother.  Others  might  be  found  to  take  the  charge, 
but  none  could  do  it  so  well.  There  is  no  question  but  that  Mrs. 
Shaw  and  her  husband  are  competent,  able,  and  well  qualified 
for  the  duties  the  guardianship  of  this  granddaughter  imposes 
upon  them,  and  it  is  a  pleasure  to  them  to  discharge  that  duty. 
The  child  likes  them,  and  is  contended  and  happy  with  them. 
Why  should  this  Court  send  her  to  a  home  where  she  does  not 
wish  to  go,  to  friends  she  does  not  know,  who  have  never  ex- 
pressed a  desire  for  her,  save  to  gratify  the  spleen  and  prejudice 
of  a  father,  who  by  his  will  left  to  his  daughter  as  her  principal 
legacy  the  hatred  he  bore  towards  her  mother's  parents,  to  a  cli- 


GUARDIANS.  263 

mate  not  congenial  to  her  health,  and  whicn  brought  her  mother 
to  a  premature  grave? 

It  is  claimed  by  counsel  for  the  Stockmans  that  the  law  is 
inexorable,  and  requires  this  to  be  done.  I  cannot  agree  with 
counsel  upon  this  subject.  Courts  have  a  general  superintending 
power  over  all  infants,  and  the  primary  guardianship  of  the  par- 
ent over  his  child  lasts  no  longer  than  he  is  found  to  be  compe- 
tent, and  discharges  his  duty  which  nature  has  laid  upon  him, 
properly;  and  when  he  fails  to  do  this,  the  proper  court  may  in- 
terfere, and  charge  another  with  the  discharge  of  this  duty. 
The  good  of  society  and  the  welfare  of  the  State  require  this,  and 
can  never  require  less.  Primarily,  the  court  is  the  guardian  of 
all  orphan  children,  and  will  give  the  proper  directions  as  to  their 
care  and  support  until  such  time  as  a  guardian  shall  be  appointed ; 
and  it  is  then  its  duty  to  see  to  it  that  the  duties  of  the  trust  are 
properly  discharged. 

Guardians  for  infants  may  be  appointed  by  the  last  will  of 
the  parent  instead  of  by  the  court,  in  which  case  the  court  will 
recognize  their  authority  and  their  control  of  the  ward  so  long  as 
it  is  right  and  proper,  and  for  the  best  interest  of  the  ward.  The 
powers  of  a  testamentary  guardian  are  just  the  same  precisely  as 
are  those  of  a  guardian  appointed  by  the  court,  and  are  allowed 
to  be  exercised  or  withheld  for  the  same  reasons.  Who  shall  or 
may  be  appointed  guardian  is  within  the  discretion  of  the  court. 
Relatives  of  the  infant  are  usually  selected,  and  those  nearest  of 
kin  are  usually  preferred  when  otherwise  competent,  and  as  be- 
tween those  entitled  the  question  to  be  determined  in  making  the 
selection  is,  and  always  should  be,  what  will  be  for  the  best  in- 
terest of  the  ward  under  all  the  circumstances  ?  It  should  control 
everything  else. 

In  looking  into  the  circumstances  in  this  case  it  seems  to  me 
but  one  conclusion  can  be  reached,  and  that  is  that  this  child 
should  be  permitted  to  remain  where  she  now  is,  with  her  mater- 
nal grandparents.  The  testimony  shows  they  are  doing  all  that 
is  necessary  for  her  enjoyment,  her  education,  her  health,  her 
comfort,  and  welfare,  and  without  expense  to  the  ward  or  her  es- 
tate.    Her  acquaintances,  her  associates,  her  friends,  are  all  there, 


264  PRIVATE   INTERNATIONAL  LAW. 

and  she  has  all  the  advantages  for  moral  and  intellectual  culture, 
with  the  accomplishments  to  be  acquired  in  the  best  society ;  and 
were  the  change  made  as  desired  by  petitioners,  we  are  not  sure 
she  could  have  the  benefit  of  all  these.  And  I  feel  quite  certain 
she  would  not.  She  is  just  at  this  time  of  an  age  when  she  needs 
the  guardianship  of  the  most  exemplary  and  circumspect.  She 
has  now  arrived  at  an  age  when  impressions  will  become  most 
lasting,  and  it  is  of  the  greatest  importance  to  her  future  welfare 
that  they  should  be  correct.  I  do  not  think  this  Court  would  be 
justified  in  trying  the  experiment  of  transferring  her  custody  to 
the  grandparents  at  Washington,  even  though  they  were  equally 
competent  with  those  at  Port  Huron ;  a  fact,  however,  I  regret  to 
say,  I  have  been  unable  to  find  from  the  testimony.  I  am  not 
prepared  to  give  my  assent  to  an  experiment  fraught  with  the 
danger  of  destroying  the  happiness  of  this  innocent  young  girl's 
future  life.  There  is  no  law  which  requires  this  Court  to  make 
such  a  decision,  and  justice  to  the  dead  as  well  as  to  the  living  pro- 
tests against  it. 

Mr.  and  Mrs.  Shaw  have  been  duly  appointed  guardians  of 
the  child  in  this  State.  Under  the  agreement  which  was  made 
by  the  father,  on  request  of  the  mother,  with  Mrs.  Shaw  when 
she  brought  the  child  to  Port  Huron,  that  place  became  the  child's 
residence,  and  it  was  not  changed  by  the  agreement  which  Mrs. 
Shaw,  subsequently  signed  under  duress  in  Washington.  By  vir- 
tue of  the  letters  of  guardianship  the  respondents  have  also  the 
lawful  custody  of  their  ward,  and  the  testamentary  guardians 
never  had  any  right  to  such  custody,  except  that  which  comity 
gave  them,  and  which  can  never  be  properly  enforced  in  this 
State,  under  the  circumstances  appearing  in  this  case.  Laws  of 
1883,  p.  3;  Laws  of  1887,  p.  147;  How.  Stat.  §  6312;  In  re  Rice, 
42  Mich.  528  (4  N.  W.  Rep.  284)  ;  lohnstone  v.  Beattie,  10  Clark 
&  F.  42 ;  Morrell  v.  Dickey,  1  Johns.  Ch.  153 ;  Kraft  v.  Wickey,  4 
Gill  &  J.  332;  Story,  Confl.  Law,  §§  494-504;  Overseers  v.  Over- 
seers, 5  Cow.  527 ;  Riley  v.  Riley,  3  Day,  74 ;  Fenwick  v.  Sear's 
Adm'rs,  1  Cranch,  259;  Whart.  Confl.  Laws,  §§  261-264;  Reeve, 
Dom.  Rel.  454;  Creuze  v.  Hunter,  2  Cox,  Ch.  242;  De  Manncville 
v.  De  Manneville,  10  Ves.  52;  Wood  v.  Wood,  5  Paige,  596,  605 ; 


GUARDIANS.  265 

Leonard  v.  Putnam,  51  N.  H.  247;  Hubbard's  Case,  22  Alb.  Law 
J.  315 ;  Ex  parte  Watkins,  2  Ves.  Sr.  470;  Woodworth  v.  Spring, 
4  Allen,  321 ;  Tozvnsend  v.  Kendall,  4  Minn.  412;  Boyd  v.  Glass, 
34  Ga.  253 ;  In  re  Turner,  41  Law  J.  (Q.  B.)  142 ;  Rowe  v.  Rozve, 
28  Mich.  353;  Corrie  v.  Corrie,  42  Id.  509  (4  N.  W.  Rep.  213)  ; 
People  v.  Brown,  35  Hun,  324;  2  Lead.  Cas.  Eq.  (White  &  T. 
Notes),  1528;  Hoch.  Inf.  §  56;  Gishwiler  v.  Dodez,  4  Ohio  St. 
615;  McLoskey  v.  Reid,  4  Bradf.  Surr.  334;  Ex  parte  Dawson, 
3  Id.  130;  Bcnnct  v.  Bennet,  13  N.  J.  Eq.  114;  Tyler,  Inf.  283, 
285-292;  Duniain  v.  G wynne,  10  Allen,  270;  In  re  Spence,  2 
Phil.  Ch.  247. 

Comity  cannot  be  considered  in  a  case  like  this,  when  the  fu- 
ture welfare  of  the  child  is  the  vital  question  in  the  case.  The 
good  of  the  child  is  superior  to  all  other  considerations.  It  is 
the  polar  star  to  guide  to  the  conclusion  in  all  cases  of  infants, 
whether  the  question  is  raised  upon  a  writ  of  habeas  corpus  Oi." 
in  a  court  of  chancery.  The  infant's  desire  in  determining  where 
she  shall  reside,  if  of  sufficient  age  and  uninfluenced,  is  always 
listened  to  with  interest,  and  in  this  case  we  have  it  marked  and 
most  emphatic.     She  wants  to  remain  where  she  is. 

I  think  the  duty  of  the  Court  in  this  case  is  plain  and  clear. 
I  have  no  doubt  of  Mrs.  Shaw's  right  to  the  custody  of  this  child 
under  the  contract  she  made  with  her  father  at  the  death-bed  of 
her  mother,  and  I  am  entirely  satisfied  that  she  is  now  receiving 
the  care  she  needs,  and  that  her  education  is  properly  attended  to, 
and  that  she  is  happy  in  her  home  and  surroundings,  and  that  she 
never  could  be  at  Washington,  under  the  guardianship  of  her  pa- 
ternal grandparents. 

In  my  judgment  the  writ  should  be  denied,  with  costs,  and 
the  child  should  be  allowed  to  remain  where  she  now  is,  with  Mr 
and  Mrs.  Shaw,  in  Port  Huron. 

Morse  and  Long,  JJ.,  concurred  with  Sherwood,  C.  J. 


266  PRIVATE    INTERNATIONAL   LAW.    , 

LAMAR  v.  MICOU,  112  U.  S.  452,  (1884). 

This  was  an  appeal  by  the  executor  of  a  guardian  from  a 
decree  against  him  upon  a  bill  in  equity  filed  by  the  administratrix 
of  his  ward. 

The  original  bill,  filed  on  July  I,  1875,  by  Ann  C.  Sims,  a 
citizen  of  Alabama,  as  administratrix  of  Martha  M.  Sims,  in  the 
Supreme  Court  of  the  State  of  New  York,  alleged  that  on  De- 
cember 11,  1855,  the  defendant's  testator,  Gazaway  B.  Lamar, 
was  duly  appointed,  by  the  surrogate  of  the  county  of  Richmond 
in  that  State,  guardian  of  the  person  and  estate  of  Martha  M. 
Sims,  an  infant  of  six  years  of  age,  then  a  resident  of  that  county, 
and  gave  bond  as  such,  and  took  into  his  possession  and  control 
all  her  property,  being  more  than  $5,000;  that  on  October  5,  1874, 
he  died  in  New  York,  and  on  November  10,  1874,  his  will  was 
there  admitted  to  probate,  and  the  defendant,  a  citizen  of  New 
York,  was  appointed  his  executor;  and  that  he  and  his  executor 
had  neglected  to  render  any  account  of  his  guardianship  to  the 
surrogate  of  Richmond  county  or  to  any  court  having  cognizance 
thereof,  or  to  the  ward  or  her  administratrix ;  and  prayed  for  an 
account,  and  for  judgment  for  the  amount  found  to  be  due. 

The  defendant  removed  the  case  into  the  Circuit  Court  of 
the  United  States  for  the  Southern  District  of  New  York;  and 
there  filed  an  answer,  averring  that  in  1855,  when  Lamar  was 
appointed  guardian  of  Martha  M.  Sims,  he  was  a  citizen 
of  Georgia,  and  she  was  a  citizen  of  Alabama,  having  a 
temporary  residence  in  the  city  of  New  York;  that  in  the 
spring  of  1861  the  States  of  Georgia  and  Alabama  declared 
themselves  to  have  seceded  from  the  United  States,  and  to  con- 
stitute members  of  the  so-called  Confederate  States  of  America, 
whereupon  a  state  of  war  arose  between  the  United  States  and  the 
Confederate  States,  which  continued  to  be  flagrant  for  more  than 
four  years  after;  that  Lamar  and  Martha  M.  Sims  were  in  the 
spring  of  1861  citizens  and  residents  of  the  States  of  Georgia  and 
Alabama  respectively,  and  citizens  of  the  Confederate  States,  and 
were  engaged  in  aiding  and  abetting  the  State  of  Georgia  and  the 
so-called  Confederate  States  in  their  rebellion  against  the  United 


GUARDIANS.  267 

States,  and  she  continued  to  aid  and  abet  until  the  time  of  her 
death,  and  he  continued  to  aid  and  abet  till  January,  1865  '> tnat  tne 
United  States  by  various  public  acts  declared  all  his  and  her  prop- 
erty, of  any  kind,  to  be  liable  to  seizure  and  confiscation  by  the 
United  States,  and  they  both  were,  by  the  various  acts  of  Con- 
gress of  the  United  States,  outlawed  and  debarred  of  any  access 
to  any  court  of  the  United  States,  whereby  it  was  impossible  for 
Lamar  to  appear  in  the  Surrogate's  Court  of  Richmond  county  to 
settle  and  close  his  accounts  there,  and  to  be  discharged  from  his 
liability  as  guardian,  in  consequence  whereof  the  relation  of 
guardian  and  ward,  so  far  as  it  depended  upon  the  orders  of  that 
court,  ceased  and  determined ;  that,  for  the  purpose  of  saving  the 
ward's  property  from  seizure  and  confiscation  by  the  United 
States,  Lamar,  at  the  request  of  the  ward  and  of  her  natural 
guardians,  all  citizens  of  the  State  of  Alabama,  withdrew  the 
funds  belonging  to  her  from  the  city  of  New  \ork,  and  invested 
them  for  her  benefit  and  account  in  such  securities  as  by  the  laws 
of  the  States  of  Alabama  and  Georgia  and  of  the  Confederate 
States  he  might  lawfully  do ;  that  in  1864,  upon  the  death  of 
Martha  M.  Sims,  all  her  property  vested  in  her  sister,  Ann  C. 
Sims,  as  her  next  of  kin,  and  any  accounting  of  Lamar  for  that 
property  was  to  be  made  to  her;  that  on  March  15,  1867,  at  the 
written  request  of  Ann  C.  Sims  and  of  her  natural  guardians, 
Benjamin  H.  Micou  was  appointed  her  legal  guardian  by  the  Pro- 
bate Court  of  Montgomery  County,  in  the  State  of  Alabama, 
which  was  at  that  time  her  residence,  and  Lamar  thereupon  ac- 
counted for  and  paid  over  all  property,  with  which  he  was  charge- 
able as  guardian  of  Martha  M.  Sims,  to  Micou  as  her  guardian, 
and  received  from  him  a  full  release  therefor;  and  that  Ann  C. 
Sims  when  she  became  of  age  ratified  and  confirmed,  the  same. 
To  that  answer  the  plaintiff  filed  a  general  replication. 

The  case  was  set  down  for  hearing  in  the  Circuit  Court  upon 
the  bill,  answer  and  replication,  and  a  statement  of  facts  agreed 
by  the  parties,  in  substance  as  follows : 

On  November  23,  1850,  William  W.  Sims,  a  citizen  of 
Georgia,  died  at  Savannah  in  that  State,  leaving  a  widow,  who 
was  appointed  his  administratrix,  and  two  infant  daughters,  Mar- 


268  PRIVATE    INTERNATIONAL   LAW. 

tha  M.  Sims,  born  at  Savannah  on  September  8,  1849,  and  Ann 
C.  Sims,  born  in  Florida  on  June  1,  185 1.  In  1853  the  widow 
married  the  Rev.  Richard  M.  Abercrombie,  of  Clifton,  in  the 
county  of  Richmond  and  State  of  New  York. 

On  December  II,  1855,  on  the  petition  of  Mrs.  Abercrombie, 
Gazaway  B.  Lamar,  an  uncle  of  Mr.  Sims,  and  then  residing  at 
Brooklyn  in  the  State  of  New  York,  was  appointed  by  the  surro- 
gate of  Richmond  County  guardian  of  the  person  and  es- 
tate of  each  child  "until  she  shall  arrive  at  the  age  of  fourteen 
years,  and  until  another  guardian  shall  be  appointed ;"  and  gave 
bond  to  her,  with  sureties,  "to  faithfully  in  all  things  discharge 
the  duty  of  a  guardian  to  the  said  minor  according  to  law,  and 
render  a  true  and  just  account  of  all  moneys  and  other  property 
received  bv  him,  and  of  the  application  thereof,  and  of  his  guard- 
ianship in  all  respects,  to  any  court  having  cognizance  thereof ;" 
and  he  immediately  received  from  Mrs.  Abercrombie  in  money 
$5,166.89  belonging  to  each  ward,  and  invested  part  of  it  in  Jan- 
uary and  April,  1856,  in  stock  of  the  Bank  of  the  Republic  at  New- 
York,  and  part  of  it  in  March  and  July,  1857,  in  stock  of  the  Bank 
of  Commerce  at  Savannah,  each  of  which  was  then  paying,  and 
continued  to  pay  until  April,  1861,  good  dividends  annually,  the 
one  of  ten  and  the  other  of  eight  per  cent. 

In  1856,  several  months  after  Lamar's  appointment  as  guard- 
ian, Mr.  and  Mrs.  Abercrombie  removed  from  Clifton,  in  the 
State  of  New  York,  to  Hartford,  in  the  State  of  Connecticut,  and 
there  resided  till  her  death  in  the  spring  of  1859.  The  children 
lived  with  Mr.  and  Mrs.  Abercrombie,  Lamar  as  guardian  paying 
Mr.  Abercrombie  for  their  board,  at  Clifton  and  at  Hartford, 
from  the  marriage  until  her  death ;  and  were  then  removed  to  Au- 
gusta in  the  State  of  Georgia,  and  there  lived  with  their  paternal 
grandmother  and  her  unmarried  daughter  and  only  living  child, 
their  aunt;  Lamar  as  guardian  continuing  to  pay  their  board. 
After  1856  neither  of  the  children  ever  resided  in  the  State  of 
\ew  York.  On  January  18,  i860,  their  aunt  was  married  to 
Benjamin  H.  Micou,  of  Montgomery  in  the  State  of  Alabama,  and 
the  children  and  their  grandmother  thereafter  lived  with  Mr.  and 


GUARDIANS.  269 

Mrs.  Micou  at  Montgomery,  and  the  children  were  educated  and 
supported  at  Mr.  Micou's  expense. 

From  1855  to  1859  Lamar  resided  partly  in  Georgia  and 
partly  in  New  York.  In  the  spring  of  1861  he  had  a  temporary 
residence  in  the  city  of  New  York,  and  upon  the  breaking  out  of 
the  war  of  the  rebellion,  and  after  removing  all  his  own  property, 
left  New  York,  and  passed  through  the  lines  to  Savannah,  and 
there  resided,  sympathizing  with  the  rebellion,  and  doing  what  he 
could  to  accomplish  its  success,  until  January,  1865,  and  contin- 
ued to  have  his  residence  in  Savannah  until  1872  or  1873,  when 
he  went  to  New  York  again,  and  afterwards  lived  there.  Mr. 
and  Mrs.  Micou  also  sympathized  with  the  rebellion  and  desired 
its  success,  and  each  of  them,  as  well  as  Lamar,  failed  during  the 
rebellion  to  bear  true  allegiance  to  the  United  States. 

At  the  time  of  Lamar's  appointment  as  guardian,  ten  shares 
in  the  stock  of  the  Mechanics  Bank  of  Augusta  in  the  State  of 
Georgia,  which  had  belonged  to  William  W.  Sims  in  his  life-time, 
stood  on  the  books  of  the  bank  in  the  name  of  Mrs.  Abercrombie, 
as  his  administratrix,  of  which  one-third  belonged  to  her  as  his 
widow,  and  one-third  to  each  of  the  infants.  In  January,  1856, 
the  bank  refused  a  request  of  Lamar  to  transfer  one-third  of  that 
stock  to  him  as  guardian  of  each  infant,  but  afterwards  paid 
to  him  as  guardian  from  time  to  time  two-thirds  of  the  divi- 
dends during  the  life  of  Mrs.  Abercrombie,  and  all  the  dividends 
after  her  death  until  1865.  During  the  period  last  named,  he  also 
received  as  guardian  the  dividends  on  some  other  bank  stock  in 
Savannah,  which  Mrs.  Abercrombie  owned,  and  to  which,  on  he. 
death,  her  husband  became  entitled.  Certain  facts,  relied  on  as 
showing  that  he,  immediately  after  his  wife  s  death,  made  a  sur 
render  of  her  interest  in  the  bank  shares  to  Lamar,  as  guardian  of 
her  children,  are  not  material  to  the  understanding  of  the  decision 
of  this  court,  but  are  recapitulated  in  the  opinion  ~>f  the  Circuit 
Court.     7  Fed.  Rep.  180-185. 

In  the  winter  of  1861-62,  Lamar,  fearing  that  the  stock  in  the 
Bank  of  the  Republic  at  New  York,  held  by  him  as  guardian, 
would  be  confiscated  by  the  United  States,  had  it  sold  by  a  friend 
in  New  York ;  the  proceeds  of  the  sale,  which  were  about  twenty 


270  PRIVATE   INTERNATIONAL   LAW. 

per  cent,  less  than  the  par  value  of  the  cf.ock,  invested  at  New 
York  in  guaranteed  bonds  of  the  cities  of  New  Orleans,  Memphis 
and  Mobile,  and  of  the  East  Tennessee  and  Georgia  Railroad 
Company ;  and  those  bonds  deposited  in  a  bank  in  Canada. 

Lamar  from  time  to  time  invested  the  property  of  his  wards, 
that  was  within  the  so-called  Confederate  States,  in  whatever 
seemed  to  him  to  be  the  most  secure  and  safe — some  in  Confed- 
erate States  bonds,  some  in  the  bonds  of  tne  individual  States 
which  composed  the  confederacy,  and  some  in  bonds  of  cities  and 
of  railroad  corporations  and  stock  of  banks  within  these  States. 

On  the  money  of  his  wards,  accruing  from  dividends  on  bank 
stock,  and  remaining  in  his  hands,  he  charged  himself  with  inter- 
est until  the  summer  of  1862,  when,  with  the  advice  and  aid  of 
Mr.  Micou,  he  invested  $7,000  of  such  monev  in  bonds  of  the  Con- 
federate States  and  of  the  State  of  Alabama;  and  in  1863,  with 
the  like  advice  and  aid,  sold  the  Alabama  bonds  for  more  than  he 
had  paid  for  them,  and  invested  the  proceeds  also  in  Confederate 
States  bonds ;  charged  his  wards  with  the  money  paid,  and  cred- 
ited them  with  the  bonds ;  and  placed  the  b^nds  in  the  hands  of 
their  grandmother,  who  gave  him  a  receipt  for  them  and  held 
them  till  tne  end  of  the  rebellion,  when  they,  as  well  as  the  stock 
in  the  banks  at  Savannah,  became  worthless. 

Martha  M.  Sims  died  on  November  2,  1864,  at  the  age  of  fif- 
teen years,  unmarried  and  intestate,  leaving  her  sister  Ann  C. 
Sims  her  next  of  kin.  On  January  12,  1867,  Lamar,  in  answer 
to  letters  of  inquiry  from  Mr.  and  Mrs.  Micou,  wrote  to  Mrs. 
Micou  that  he  had  saved  from  the  wreck  of  the  property  of  his 
niece,  Ann  C.  Sims,  surviving  her  sister,  three  bonds  of  the  city 
of  Memphis,  indorsed  by  the  State  of  Tennessee,  one  bond  of  the 
city  of  Mobile,  and  one  bond  of  the  East  Tennessee  and  Georgia 
Railroad  Company,  each  for  $1,000,  and  with  some  coupons  past 
due  and  uncollected ;  and  suggested  that  by  reason  of  his  age  and 
failing  health,  and  of  the  embarrassed  state  of  his  own  affairs,  Mr. 
Micou  should  be  appointed  in  Alabama  g-iardian  in  his  stead. 
Upon  the  receipt  of  this  letter  Mrs.  Micou  wrote  to  Lamar,  thank- 
ing him  for  the  explicit  statement  of  the  niece's  affairs,  and  for 
the  care  and  trouble  he  had  had  with  her  pioperty;  and  Ann  C. 


GUARDIANS.  271 

Sims,  then  nearly  sixteen  years  old,  signed  a  request,  attested  by 
her  grandmother  and  by  Mrs.  Micou,  that  her  guardianship  might 
be  transferred  to  Mr.  Micou,  and  that  he  might  be  appointed  her 
guardian.  And  on  March  15,  1867,  he  wab  appointed  guardian 
of  her  property  by  the  Probate  Court  of  the  county  of  Montgom- 
ery and  State  of  Alabama,  according  to  the  laws  of  that  State,  and 
gave  bond  as  such. 

On  May  14,  1867,  Lamar  sent  to  Micou  complete  and  correct 
statements  of  his  guardianship  account  with  each  of  his  wards, 
as  well  as  all  the  securities  remaining  in  his  hands  as  guardian  of 
either,  and  a  check  payable  to  Micou  as  guardian  of  Ann  C.  Sims 
for  a  balance  in  money  due  her;  and  Micou,  as  such  guardian, 
signed  and  sent  to  Lamar  a  schedule  of  and  receipt  for  the  prop- 
el ty,  describing  it  specifically,  by  which  it  appeared  that  the  bonds 
oi  the  cities  of  Xew  Orleans  and  Memphis  and  of  the  East  Ten- 
nessee and  Georgia  Railroad  Company  were  issued,  and  the  Mem- 
phis bonds,  as  well  as  the  railroad  bonds,  were  indorsed  by  the 
State  of  Tennessee,  some  years  before  the  breaking  out  of  the  re- 
bellion. Micou  thenceforth  continued  to  act  in  all  respects  as  the 
only  guardian  of  Ann  C.  Sims  until  she  became  of  age  on  June  1, 
1872. 

No  objection  or  complaint  was  ever  made  by  either  of  the 
wards,  or  their  relatives,  against  Lamar's  transactions  or  invest- 
ments as  guardian,  until  July  28,  1874,  when  Micou  wrote  to 
Lamar,  informing  him  that  Ann  C.  Sims  desired  a  settlement  of 
his  accounts;  and  that  he  had  been  advised  <hat  no  credits  could 
be  allowed  for  the  investments  in  Confederal e  States  bonds,  and 
that  Lamar  was  responsible  for  the  security  of  the  investments  in 
other  bonds  and  bank  stock.  Lamar  was  then  sick  in  New  York, 
and  died  there  on  October  5,  1874,  without  having  answered  the 
letter. 

Before  the  case  was  heard  in  the  Circuit  Court,  Ann  C.  Sims 
died  on  May  7,  1878 ;  and  on  June  20,  1878,  Mrs.  Micou  was  ap 
pointed,  in  New  York,  administratrix  de  bonis  non  of  Martha  M. 
Sims,  and  as  such  filed  a  bill  of  revivor  in  this  suit.  On  October 
3,  1878,  the  defendant  filed  a  cross  bill,  repeating  the  allegations 
of  his  answer  to  the  original  bill,  and  further  averring  that  Ann 


272  PRIVATE    INTERNATIONAL  LAW. 

C.  Sims  left  a  will,  which  had  been  admitted  to  probate  in  Mont- 
gomery County  in  the  State  of  Alabama,  and  afterwards  in  the 
county  and  State  of  New  York,  by  which  she  gave  all  her  prop- 
erty to  Mrs.  Micou,  who  was  her  next  of  kin ;  and  that  Mrs. 
Micou  was  entitled  to  receive  for  her  own  benefit  whatever  might 
be  recovered  in  the  principal  suit,  and  was  estopped  to  deny  the 
lawfulness  or  propriety  of  Lamar's  acts,  because  whatever  was 
done  by  him  as  guardian  of  Martha  M.  Sims  in  her  lifetime,  or  as 
guardian  of  the  interests  of  Ann  C.  Sims  as  her  next  of  kin,  was 
authorized  and  approved  by  Mrs.  Micou  and  her  mother  and  hus- 
band as  the  natural  guardians  of  both  children.  Mrs.  Micou,  as 
plaintiff  in  the  bill  of  revivor,  answered  the  cross  bill,  alleging 
that  Ann  succeeded  to  Martha's  property  as  administratrix,  and 
not  as  her  next  of  kin,  admitting  Ann's  will  and  the  probate  there- 
of, denying  that  Mrs.  Micou  was  a  natural  guardian  of  the  chil- 
dren, and  denying  that  she  approved  or  ratified  Lamar's  acts  as 
guardian.     A  general  replication  was  filed  to  that  answer. 

Upon  a  hearing  on  the  pleadings  and  the  agreed  statement 
of  facts,  the  Circuit  Court  dismissed  the  cross  bill,  held  all  La- 
mar's investments  to  have  been  breaches  of  trust,  and  entered  a 
decree  referring  the  case  to  a  master  to  state  an  account.  The 
case  was  afterwards  heard  on  exceptions  to  the  master's  report, 
and  a  final  decree  entered  for  the  plaintiff  for  $18,705.19,  includ- 
ing the  value  before  186 1  of  those  bank  stocks  in  Georgia  of  which 
Lamar  had  never  had  possession.  The  opinion  delivered  upon 
the  first  hearing  is  reported  in  17  Blatchford,  378,  and  in  1  Fed. 
Rep.  14,  and  the  opinion  upon  the  second  hearing  in  7  Fed.  Rep. 
180.     The  defendant  appealed  to  this  court. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court.  He 
recited  the  facts  as  above  stated,  and  continued : 

The  authority  of  the  Surrogate's  Court  of  the  county  of  Rich- 
mond and  State  of  New  York  to  appoint  Lamar  guardian  of  the 
persons  and  property  of  infants  at  the  time  within  that  county, 
and  the  authority  of  the  Supreme  Court  of  the  State  of  New  York, 
in  which  this  suit  was  originally  brought,  being  a  court  of  gen- 
eral equity  jurisdiction,  to  take  cognizance  thereof,  are  not  dis- 
puted ;  and  upon  the  facts  agreed  it  is  quite  clear  that  none  of  the 


GUARDIANS.  273 

defences  set  up  in  the  answer  afford  any  ground  for  dismissing 
the  bill. 

The  war  of  the  rebellion,  and  the  residence  of  both  ward  and 
guardian  within  the  territory  controlled  by  the  insurgents,  did 
not  discharge  the  guardian  from  his  responsibility  to  account, 
after  the  war,  for  property  of  the  wards  which  had  at  any  time 
come  into  his  hands,  or  which  he  might  by  the  exercise  of  due 
care  have  obtained  possession  of.  A  state  of  war  does  not  put 
an  end  to  pre-existing  obligations,  or  transfer  the  property  of 
wards  to  their  guardians,  or  release  the  latter  from  the  duty  to 
keep  it  safely,  but  suspends  until  the  return  of  peace  the  right  of 
any  one  residing  in  the  enemy's  country  to  sue  in  our  courts. 
Ward  v.  Smith,  7  Wall.  447;  Montgomery  v.  United  States,  15 
Wall.  395,  400;  Insurance  Co.  v.  Davis,  95  U.  S.  425,  430;  Ker- 
shaw v.  Kelsey,  ioo  Mass.  561,  563,  564,  570;  3  Phillimore  Inter- 
national Law  (2d  ed.)  §  589. 

The  appointment  of  Micou  in  1867  by  a  court  of  Alabama 
to  be  guardian  of  the  surviving  ward,  then  residing  in  that  State, 
did  not  terminate  Lamar's  liability  for  property  of  his  wards 
which  he  previously  had  or  ought  to  have  taken  possession  of. 
The  receipt  given  by  Micou  was  only  for  the  securities  and  money 
actually  handed  over  to  him  by  Lamar ;  and  if  Micou  had  any  au- 
thority to  discharge  Lamar  from  liability  for  past  mismanage- 
ment of  either  ward's  property,  he  never  assumed  to  do  so. 

The  suggestion  in  the  answer,  that  the  surviving  ward,  upon 
coming  of  age,  ratified  and  approved  the  acts  of  Lamar  as  guard- 
ian, finds  no  support  in  the  facts  of  the  case. 

The  further  grounds  of  defence,  set  up  in  the  cross  bill,  that 
Micou  participated  in  Lamar's  investments,  and  that  Mrs.  Micou 
approved  them,  are  equally  unavailing.  The  acts  of  Micou,  be- 
fore his  own  appointment  as  guardian,  could  not  bind  the  ward. 
And  admissions  in  private  letters  from  Mrs.  Micou  to  Lamar 
could  not  affect  the  rights  of  the  ward,  or  Mrs.  Micou's  author- 
ity, upon  being  afterwards  appointed  administrati  ix  of  the  ward, 
to  maintain  this  bill  as  such  against  Lamar's  representative,  even 
if  the  amount  recovered  will  inure  to  her  own  benefit  as  the  ward's 
next  of  kin.     1  Greenl.  Ev.  §  179. 


274  PRIVATE    INTERNATIONAL   LAW. 

The  extent  of  Lamar's  liability  presents  more  difficult  ques- 
tions of  law,  now  for  the  first  time  brought  before  this  court. 

The  general  rule  is  everywhere  recognized,  that  a  guardian 
or  trustee,  when  investing  property  in  his  hands,  is  bound  to  act 
honestly  and  faithfully,  and  to  exercise  a  sound  discretion,  such 
as  men  of  ordinary  prudence  and  intelligence  use  in  their  own 
affairs.  In  some  jurisdictions,  no  attempt  has  been  made  to  es- 
tablish a  more  definite  rule;  in  others,  the  discretion  has  been 
confined,  by  the  legislature  or  the  courts,  within  strict  limits. 

The  Court  of  Chancery,  before  the  Declaration  of  Indepen- 
dence, appears  to  have  allowed  some  latitude  to  trustees  in  mak- 
ing investments.  The  best  evidence  of  this  is  to  be  found  in  the 
judgments  of  Lord  Hardwicke.  He  held,  indeed,  in  accordance 
with  the  clear  weight  of  authority  before  and  since,  that  money 
lent  on  a  mere  personal  obligation,  like  a  promissory  note,  with- 
out security,  was  at  the  risk  of  the  trustee.  Ryder  v.  Bickerton, 
3  Swanston,  80,  note;  S.  C.  1  Eden,  149,  note;  Barney  v.  Saun- 
ders, 16  How.  535,  545  ;  Perry  on  Trusts,  §  453.  But  in  so  holding, 
he  said :  "For  it  should  have  been  on  some  such  security  as  binds 
land,  or  something,  to  be  answerable  for  it."  3  Swanston,  Si, 
note.  Although  in  one  case  he  held  that  a  trustee,  directed  by  the 
terms  of  his  trust  to  invest  the  trust  money  in  government  funds 
or  other  good  securities,  was  responsible  for  a  loss  caused  by  his 
investing  it  in  South  Sea  stock;  and  observed  that  neither  South 
Sea  stock  nor  bank  stock  was  considered  a  good  security,  because 
it  depended  upon  the  management  of  the  governor  and  directors, 
and  the  capital  might  be  wholly  lost;  Trafford  v.  Boehm,  3  Atk. 
440,  444 ;  yet  in  another  case  he  declined  to  charge  a  trustee  for  a 
loss  on  South  Sea  stock  which  had  fallen  in  value  since  the  trus- 
tee received  it;  and  said  that  "to  compel  trustees  to  make  up  a 
deficiency,  not  owing  to  their  wilful  default,  is  the  harshest  de- 
mand that  can  be  made  in  a  court  of  equity."  Jackson  v.  Jack- 
son, 1  Atk.  513,  514;  5".  C.  West  Ch.  31,  34.  In  a  later  case  he 
said :  "Suppose  a  trustee,  having  in  his  hands  a  considerable  sum 
of  money,  places  it  out  in  the  funds,  which  arftewards  sink  in 
their  value,  or  on  a  security  at  the  time  apparently  good,  which 
afterwards  turns  out  not  to  be  so,  for  the  benefit  of  the  cestui  que 


GUARDIANS.  275 

trust,  was  there  ever  an  instance  of  the  trustee's  being  made  to 
answer  the  actual  sum  so  placed  out?  I  answer,  No.  If  there 
is  no  mala  fides,  nothing  wilful  in  the  conduct  of  the  trustee,  the 
court  will  always  favor  him.  For  as  a  trust  is  an  office  necessary 
in  the  concerns  between  man  and  man,  and  which,  if  faithfully 
discharged,  is  attended  with  no  small  degree  of  trouble  and  anx- 
iety, it  is  an  act  of  great  kindness  in  any  one  to  accept  it ;  to  add 
hazard  or  risk  to  that  trouble,  and  subject  a  trustee  to  losses  which 
he  could  not  foresee,  and  consequently  not  prevent,  would  be  a 
manifest  hardship,  and  would  be  deterring  every  one  from  ac- 
cepting so  necessary  an  office."  That  this  opinion  was  not  based 
upon  the  fact  that  in  England  trustees  usually  receive  no  com- 
pensation is  clearly  shown  by  the  Chancellor's  adding  that  the 
same  doctrine  held  good  in  the  case  of  a  receiver,  an  officer  of  the 
court,  and  paid  for  his  trouble ;  and  the  point  decided  was  that 
a  receiver,  who  paid  the  amount  of  rents  of  estates  in  his  charge 
to  a  Bristol  tradesman  of  good  credit,  taking  his  bills  therefor  on 
London,  was  not  responsible  for  the  loss  of  the  money  by  his  be- 
coming bankrupt.  Knight  v.  Plymouth,  I  Dickens,  120,  126, 
127;  5".  C.  3  Atk.  480.  And  the  decision  was  afterwards  cited  by 
Lord  Hardwicke  himself  as  showing  that  when  trustees  act  by 
other  hands,  according  to  the  usage  of  business,  they  are  not  an- 
swerable for  losses.  Ex  parte  Belchier,  Ambler,  219;  5".  C.  1 
Kenyon,  38,  47. 

In  later  times,  as  the  amount  and  variety  of  English  govern- 
ment securities  increased,  the  Court  of  Chancery  limited  trust 
investments  to  the  public  funds,  disapproved  investments  either 
in  bank  stock,  or  in  mortgages  of  real  estate,  and  prescribed  so 
strict  a  rule  that  Parliament  interposed ;  and  by  the  statutes  of 
22  &  23  Vict.  ch.  35,  and  23  &  24  Vict.  ch.  38,  and  by  general 
orders  in  chancery,  pursuant  to  those  statutes,  trustees  have  been 
authorized  to  invest  in  stock  of  the  Bank  of  England  or  of  Ire- 
land, or  upon  mortgage  of  freehold  or  copyhold  estates,  as  well  as 
in  the  public  funds.     Lewin  on  Trusts  (7th  ed.)  282,  283,  287. 

In  a  very  recent  case,  the  Court  of  Appeal  and  the  House  of 
Lords,  following  the  decisions  of  Lord  Hardwicke,  in  Knight  v. 
Plymouth  and  Ex  parte  Belchier,  above  cited,  held  that  a  trustee 


276  PRIVATE    INTERNATIONAL   LAAV. 

investing  trust  funds,  who  employed  a  broker  to  procure  securi- 
ties authorized  by  the  trust,  and  paid  the  purchase  money  to  the 
broker,  if  such  was  the  usual  and  regular  course  of  business  of 
persons  acting  with  reasonable  care  and  prudence  on  their  own 
account,  was  not  liable  for  the  loss  of  the  money  by  fraud  of  the 
broker.  Sir  George  Jessel,  M.  R.,  Lord  Justice  Bowen,  and  Lord 
Blackburn  affirmed  the  general  rule  that  a  trustee  is  only  bound 
to  conduct  the  business  of  his  trust  in  the  same  manner  that  an 
ordinary  prudent  man  of  business  would  conduct  his  own ;  Lord 
Blackburn  adding  the  qualification  that  "a  trustee  must  not  choose 
investments  other  than  those  which  the  terms  of  his  trust  permit." 
Speight  v.  Gaunt,  22  Ch.  D.  727,  739,  762;  9  App.  Cas.  1,  19. 

In  this  country,  there  has  been  a  diversity  in  the  laws  and 
usages  of  the  several  States  upon  the  subject  of  trust  investments. 

In  New  York,  under  Chancellor  Kent,  the  rule  seems  to  have 
been  quite  undefined.  See  Smith  v.  Smith,  4  Johns.  Ch.  281,  285  ; 
Thompson  v.  Brown,  4  Johns.  Ch.  619,  628,  629,  where  the  chan- 
cellor quoted  the  passage  above  cited  from  Lord  Hardwicke's 
opinion  in  Knight  v.  Plymouth.  And  in  Brown  v.  Camp- 
bell, Hopk.  Ch.  233,  where  an  executor  in  good  faith  made 
an  investment,  considered  at  the  time  to  be  advantageous, 
of  the  amount  of  two  promissory  notes,  due  to  his  testator 
from  one  manufacturing  corporation,  fh  the  stock  of  another 
manufacturing  corporation,  which  afterwards  became  insol- 
vent, Chancellor  Sanford  held  that  there  was  no  reason  to 
charge  him  with  the  loss.  But  by  the  later  decisions  in  that  State 
investments  in  bank  or  railroad  stock  have  been  held  to  be  at  the 
risk  of  the  trustee,  and  it  has  been  intimated  that  the  only  invest- 
ments that  a  trustee  can  safely  make  without  an  express  order  of 
court  are  in  government  or  real  estate  securities.  King  v.  Talbot, 
40  N.  Y.  76,  affirming  5".  C.  50  Barb.  453 ;  Ackerman  v.  Emott,  4 
Barb.  626;  Mills  v.  Hoffman,  26  Hun,  594;  2  Kent  Com.  416, 
note  b.  So  the  decisions  in  New  Jersey  and  Pennsylvania  tend 
to  disallow  investments  in  the  stock  of  banks  or  other  business 
corporations,  or  otherwise  than  in  the  public  funds  or  in  mort- 
gages of  real  estate.  Gray  v.  Fox,  Saxton,  259,  268 ;  Halstead  v. 
Meeker,  3  C.  E.  Green,  136;  Lathrop  v.  Smalley,  8  C.  E.  Green, 


GUARDIANS.  277 

192 ;  Worrell's  Appeal,  9  Penn.  St.  508,  and  23  Penn.  St.  44 ; 
Hemphill's  Appeal,  18  Penn.  St.  303 ;  Ihmsen's  Appeal,  43  Penn. 
St.  431.  And  the  New  York  and  Pennsylvania  courts  have 
shown  a  strong  disinclination  to  permit  investments  in  real  es- 
tate or  securities  out  of  their  jurisdiction.  Ormiston  v.  Olcott,  84 
N.  Y.  339 ;  Rush's  Estate,  12  Penn.  St.  375,  378. 

In  New  England,  and  in  the  Southern  States,  the  rule  has 
been  less  strict. 

In  Massachusetts,  by  a  usage  of  more  than  half  a  century, 
approved  by  a  uniform  course  of  judicial  decision,  it  has  come  to 
be  regarded  as  too  firmly  settled  to  be  changed,  except  by  the 
lgislature,  that  all  that  can  be  required  of  a  trustee  to  invest  is 
that  he  shall  conduct  himself  faithfully  and  exercise  a  sound  dis- 
cretion, such  as  men  of  prudence  and  intelligence  exercise  in  the 
permanent  disposition  of  their  own  funds,  having  regard  not  only 
to  the  probable  income,  but  also  to  the  probable  safety  of  the  capi- 
tal ;  and  that  a  guardian  or  trustee  is  not  precluded  from  invest- 
ing in  the  stock  of  banking,  insurance,  manufacturing  or  railroad 
corporations,  within  or  without  the  State.  Harvard  College  v. 
Amory,  9  Pick.  446,  461;  Lovell  v.  Minot,  20  Pick.  116,  119; 
Kinmonth  v.  Brigham,  5  Allen,  270,  277;  Clark  v.  Garfield,  8 
Allen,  427;  Brown  v.  French,  125  Mass.  410;  Bowker  v.  Pierce, 
130  Mass.  262.  In  New  Hampshire  and  in  Vermont,  invest- 
ments, honestly  and  prudently  made,  in  securities  of  any  kind 
that  produce  income,  appear  to  be  allowed.  Knowlton  v.  Bradley, 
17  N.  H.  458;  Kimball  v.  Reding,  11  Foster,  352,  374;  French  v. 
Currier,  47  N.  H.  88,  99;  Barney  v.  Parsons,  54  Vermont,  623. 

In  Maryland,  good  bank  stock,  as  well  as  government  se- 
curities and  mortgages  on  real  estate,  has  always  been  consid- 
ered a  proper  investment.  Hammond  v.  Hammond,  2  Bland.  306, 
413;  Gray  v.  Lynch,  8  Gill,  403;  Murray  v.  Feinour,  2  Maryland 
Ch.  418.  So  in  Mississippi,  investment  in  bank  stock  is  allowed. 
Smyth  v.  Burns,  25  Mississippi,  422. 

In  South  Carolina,  before  the  war,  no  more  definite  rule  ap- 
pears to  have  been  laid  down  than  that  guardians  and  trustees 
must  manage  the  funds  in  their  hands  as  prudent  men  manage 
their  own  affairs.     Boggs  v.  Adger,  4  Rich.  Eq.  408,  411 ;  Sfcar 


278  PRIVATE   INTERNATIONAL  LAW. 

v.  Spear,  9  Rich.  Eq.  184,  201 ;  Snclling  v.  McCreary,  14  Rich. 
Eq..29i,  300. 

In  Georgia,  the  English  rule  was  never  adopted ;  a  statute  of 
1845,  which  authorized  executors,  administratOiV.,  guardians  and 
trustees,  holding  any  trust  funds,  to  invest  them  in  securities  of 
the  State,  was  not  considered  compulsory ;  and  before  January 
1,  1863  (when  that  'statute  was  amended  by  adding  a  provision 
that  any  other  investment  of  trust  funds  must  be  made  under  a 
judicial  order,  or  else  be  at  the  risk  of  the  trustee),  those  who  lent 
the  fund  at  interest,  on  what  was  at  the  time  considered  by  pru- 
dent men  to  be  good  security,  were  not  held  liable  for  a  loss  with- 
out their  fault.  Cobb's  Digest,  333;  Code  of  1861,  §  2308; 
Brozvn  v.  Wright,  39  Georgia,  96;  Moses  v.  Moses,  50  Georgia, 

9,  33- 

In  Alabama,  the  Supreme  Court,  in  Bryant  v.  Craig,  12 
Alabama,  354,  359,  having  intimated  that  a  guardian  could  not 
safely  invest  upon  either  real  or  personal  security  without  an 
order  of  court,  the  legislature,  from  1852,  authorized  guardians 
and  trustees  to  invest  on  bond  and  mortgage,  or  on  good  personal 
security,  with  no  other  limit  than  fidelity  and  prudence  might  re- 
quire. Code  of  1852,  §  2024;  Code  of  1867,  §  2426:  Foscue  v. 
Lyon,  55  Alabama,  440,  452. 

The  rules  of  investment  varying  so  much  in  the  different 
States,  it  becomes  necessary  to  consider  by  what  law  the  man- 
agement and  investment  of  the  ward's  property  should  be  gov- 
erned. 

As  a  general  rule  (with  some  exceptions  not  material  to  the 
consideration  of  this  case)  the  law  of  the  domicil  governs  the 
status  of  a  person,  and  the  disposition  and  management  of  his 
movable  property.  The  domicl  of  an  infant  is  universally  held 
to  be  the  fittest  place  for  the  appointment  of  a  guardian  of  his 
person  and  estate ;  although,  for  the  protection  of  either,  a  guard- 
ian may  be  appointed  in  anv  State  where  the  person  or  any  prop- 
erty of  an  infant  may  be  found.  On  the  continent  of  Europe, 
the  guardian  appointed  in  the  State  of  the  domicil  of  the  ward  is 
generally  recognized  as  entitled  to  the  control  and  dominion  of 
the  ward  and  his  movable  property  everywhere,  and  guardians 


GUARDIANS.  279 

specially  appointed  in  other  States  are  responsible  to  the  principal 
guardian.  By  the  law  of  England  and  of  this  country,  a  guardian 
appointed  by  the  courts  of  one  State  has  no  authority  over  the 
ward's  person  or  property  in  another  State,  except  so  far  as 
allowed  by  the  comity  of  that  State,  as  expressed  through  its 
legislature  or  its  courts ;  but  the  tendency  of  modern  statutes  and 
decisions  is  to  defer  to  the  law  of  the  domicil,  and  to  support  the 
authority  of  the  guardian  appointed  there.  Hoyt  v.  Sprague,  103 
U.  S.  613,  631,  and  authorities  cited;  Morrell  v.  Dickey,  1  Johns. 
Ch.  153;  Woodworth  v.  Spring,  4  Allen,  321;  Milliken  v.  Pratt, 
125  Mass.  374,  377,  378;  Leonard  v.  Putnam,  51  N.  H.  247; 
Commonwealth  v.  Rhoads,  37  Penn.  St.  60 ;  Sims  v.  Renwick,  25 
Georgia,  58;  Dicey  on  Domicil,  172-176;  Westlake  Private  Inter- 
national Law  (2d  ed.)  48-50;  Wharton  Conflict  of  Laws,  (2d 
ed.)  §§  259-268. 

An  infant  cannot  change  his  own  domicil.  As  infants  have 
the  domicil  of  their  father,  he  may  change  their  domicil  by  chang- 
ing his  own ;  and  after  his  death  the  mother,  while  she  remains  a 
widow,  may  likewise,  by  changing  her  domicil,  change  the  domi- 
cil of  the  infants ;  the  domicil  of  the  children,  in  either  case,  fol- 
lowing the  independent  domicil  of  their  parent.  Kennedy  v. 
Ryall,  67  N.  Y.  379;  Potinger  v.  Wightman,  3  Meriv.  67;  Ded- 
ham  v.  Natick,  16  Mass.  135;  Dicey  on  Domicil,  97-99.  But 
when  the  widow,  by  marrying  again,  acquires  the  domicil  of  a 
second  husband,  she  does  not,  by  taking  her  children  by  the  first 
husband  to  live  with  her  there,  make  the  domicil  which  she  de- 
rives from  her  second  husband  their  domicil ;  and  they  retain  the 
domicil  which  they  had,  before  her  second  marriage,  acquired 
from  her  or  from  their  father.  Cumner  v.  Milton,  3  Salk.  259 ; 
5.  C.  Holt,  578 ;  Freetown  v.  Taunton,  16  Mass.  52 ;  School  Di- 
rectors v.  James,  2  Watts  &  Sergeant,  568 ;  Johnson  v.  Copeland, 
35  Alabama,  521;  Brown  v.  Lynch,  2  Bradford,  214;  Mears  v. 
Sinclair,  1  West  Virginia,  185 ;  Pothier  Introduction  Generale 
aux  Coutumes,  No.  19;  1  Burge  Colonial  and  Foreign  Law,  39; 
4  Phillimore  International  Law  (2d  ed.)  §  Q7. 

The  preference  due  to  the  law  of  the  ward's  domicil,  and  the 
importance  of  a  uniform  administration  of  his  whole  estate,  re- 


280  PRIVATE    INTERNATIONAL   LAW. 

quire  that,  as  a  general  rule,  the  management  and  investment  of 
his  property  should  be  governed  by  the  law  of  the  State  of  his 
domicil,  especially  when  he  actually  resides  there,  rather  than  by 
the  law  of  any  State  in  which  a  guardian  may  have  been  appointed 
or  may  have  received  some  property  of  the  ward.  If  the  duties 
of  the  guardian  were  to  be  exclusively  regulated  by  the  law  of  the 
State  of  his  appointment,  it  would  follow  that  in  any  case  in  which 
the  temporary  residence  of  the  ward  was  changed  from  State  to 
State,  from  considerations  of  health,  education,  pleasure  or  con- 
venience, and  guardians  were  appointed  in  each  State,  the  guard- 
ians appointed  in  the  different  States,  even  if  the  same  persons, 
might  be  held  to  diverse  rules  of  accounting  for  different  parts 
of  the  ward's  property.  The  form  of  accounting,  so  far  as  con- 
cerns the  remedy  only,  must  indeed  be  according  to  the  law  of  the 
court  in  which  relief  is  sought ;  but  the  general  rule  by  which  the 
guardian  is  to  be  held  responsible  for  the  investment  of  the  ward's 
property  is  the  law  of  the  place  of  the  domicil  of  the  ward.  Bar 
International  Law,  §  106  (Gillespie's  translation),  438;  Wharton 
Conflict  of  Laws,  §  259. 

It  may  be  suggested  that  this  would  enable  the  guardian,  by 
changing  the  domicil  of  his  ward,  to  choose  for  himself  the  law 
by  which  he  should  account.  Not  so.  The  father,  and  after  his 
death  the  widowed  mother,  being  the  natural  guardian,  and  the 
person  from  whom  the  ward  derives  his  domicil,  may  change  that 
domicil.  But  the  ward  does  not  derive  a  domicil  from  any  other 
than  a  natural  guardian.  A  testamentary  guardian  nominated  by 
the  father  may  have  Jie  same  control  of  the  ward's  domicil  that 
the  father  had.  Wood  v.  Wood,  5  Paige,  596,  605.  And  any 
guardian,  appointed  in  the  State  of  the  domicil  of  the  ward,  has 
been  generally  held  to  have  the  power  of  changing  the  ward's 
domicil  from  one  county  to  another  within  the  same  State  and 
under  the  same  law.  Cutts  v.  Haskins,  9  Mass.  543 ;  Holyoke  v. 
Haskins,  5  Pick.  20;  Kirkland  v.  Whately,  4  Allen,  462;  Ander- 
son v.  Anderson,  42  Vermont,  350;  Ex  parte  Bartlett,  4  Bradford, 
221 ;  The  Queen  v.  Whitby,  L.  R.  5  Q.  B.  325,  331.  But  it  is  very 
doubtful,  to  say  the  least,  whether  even  a  guardian  appointed  in 
the  State  of  the  domicil  of  the  ward  (not  being  the  natural  guard- 


GUARDIANS.  281 

ian  or  a  testamentary  guardian)  can  remove  the  ward's  domicil 
beyond  the  limits  of  the  State  in  which  the  guardian  is  appointed 
and  to  which  his  legal  authority  is  confined.  Douglas  v.  Doug- 
las, L.  R.  12  Eq.  617,  625 ;  Daniel  v.  Hill,  52  Alabama,  430;  Story 
Conflict  of  Laws,  §  506,  note;  Dicey  on  Domicil,  100,  132.  rvnd 
it  is  quite  clear  that  a  guardian  appointed  in  a  State  in  which  the 
ward  is  temporarily  residing  cannot  change  the  ward's  permanent 
domicil  from  one  State  to  another. 

The  case  of  such  a  guardian  differs  from  that  of  an  executor 
of,  or  a  trustee  under,  a  will.  In  the  one  case,  the  title  in  the 
property  is  in  the  executor  or  the  trustee ;  in  the  other,  the  title  in 
the  property  is  in  the  ward,  and  the  guardian  has  only  the  cus- 
tody and  management  of  it,  with  power  to  change  its  investment. 
The  executor  or  trustee  is  appointed  at  the  domicil  of  the  testator ; 
the  guardian  is  most  fitly  appointed  at  the  domicil  of  the  ward, 
and  may  be  appointed  in  any  State  in  which  the  person  or  any 
property  of  the  ward  is  found.  The  general  rule  which  governs 
the  administration  of  the  property  in  the  one  case  may  be  the  law 
of  the  domicil  of  the  testator ;  in  the  other  case,  it  is  the  law  of  the 
domicil  of  the  ward. 

As  the  law  of  the  domicil  of  the  ward  has  no  extra-territorial 
effect,  except  by  the  comity  of  the  State  where  the  property  is 
situated,  or  where  the  guardian  is  appointed,  it  cannot  of  course 
prevail  against  a  statute  of  the  State  in  which  the  question  is  pre- 
sented for  adjudication,  expressly  applicable  to  the  estate  of  a 
ward  domiciled  elsewhere.  Hoyt  v.  Spraguc,  103  U.  S.  613. 
Cases  may  also  arise  with  facts  so  peculiar  or  so  complicated  as 
to  modify  the  degree  of  influence  that  the  court  in  which  the 
guardian  is  called  to  account  may  allow  to  the  law  of  the  domicil 
of  the  ward,  consistently  with  doing  justice  to  the  parties  before 
it.  And  a  guardian,  who  had  in  good  faith  conformed  to  the  law 
of  the  State  in  which  he  was  appointed,  might  perhaps  be  ex- 
cused for  not  having  complied  with  stricter  rules  prevailing  at 
the  domicil  of  the  ward.  But  in  a  case  in  which  the  domicil  of 
the  ward  has  always  been  in  a  State  whose  law  leaves  much  to 
the  discretion  of  the  guardian  in  the  matter  of  investments,  and 
he  has  faithfully  and  prudently  exercised  that  discretion  with  a 


282  PRIVATE   INTERNATIONAL  LAW. 

view  to  the  pecuniary  interests  of  the  ward,  it  would  be  inconsis- 
tent with  the  principles  of  equity  to  charge  him  with  the  amount 
of  the  moneys  invested,  merely  because  he  has  not  complied  with 
the  more  rigid  rules  adopted  by  the  courts  of  the  State  in  which 
he  was  appointed. 

The  domicil  of  William  W.  Sims  during  his  life  and  at  the 
time  of  his  death  in  1850  was  in  Georgia.  This  domicil  continued 
to  be  the  domicil  of  his  widow  and  of  their  infant  children  until 
they  acquired  new  ones.  In  1853,  the  widow,  by  marrying  the 
Rev.  Mr.  Abercrombie,  acquired  his  domicil.  But  she  did  not, 
by  taking  the  infants  to  the  home,  at  first  in  New  York  and  after- 
wards in  Connecticut,  of  her  new  husband,  who  was  of  no  kin 
to  the  children,  was  under  no  legal  obligation  to  support  them, 
and  was  in  fact  paid  for  their  board  out  of  their  property,  make 
his  domicil,  or  the  domicil  derived  by  her  from  him,  the  domicil 
of  the  children  of  the  first  husband.  Immediately  upon  her  death 
in  Connecticut,  in  1859,  these  children,  both  under  ten  years  of 
age,  were  taken  back  to  Georgia  to  the  house  of  their  father's 
mother  and  unmarried  sister,  their  own  nearest  surviving  rela- 
tives ;  and  they  continued  to  live  with  their  grandmother  and  aunt 
in  Georgia  until  the  marriage  of  the  aunt  in  January,  i860,  to 
Mr.  Micou,  a  citizen  of  Alabama,  after  which  the  grandmother 
and  the  children  resided  with  Mr.  and  Mrs.  Micou  at  their  domi- 
cil in  that  State. 

Upon  these  facts,  the  domicil  of  the  children  was  always  in 
Georgia  from  their  birth  until  January,  i860,  and  thenceforth 
was  either  in  Georgia  or  in  Alabama.  As  the  rules  of  investment 
prevailing  before  1863  in  Georgia  and  in  Alabama  did  not  sub- 
stantially differ,  the  question  in  which  of  those  two  States  their 
domicil  was  is  immaterial  to  the  decision  of  this  case;  and  it  is 
therefore  unnecessary  to  consider  whether  their  grandmother  was 
their  natural  guardian,  and  as  such  had  the  power  to  change  their 
domicil  from  one  State  to  another.  See  Hargrave's  note  66  to 
Co.  Lit.  88  b:  Reeve  Domestic  Relations,  315;  2  Kent  Com.  219; 
Code  of  Georgia  of  1861,  §§  1754,  2452;  Darden  v.  Wyatt,  15 
Georgia,  414. 

Whether  the  domicil  of  Lamar  in  December,  1855,  when  he 


GUARDIANS.  283 

was  appointed  in  New  York  guardian  of  the  infants,  was  in  New 
York  or  in  Georgia,  does  not  distinctly  appear,  and  is  not  mate- 
rial ;  because,  for  the  reasons  already  stated,  wherever  his  domicil 
was,  his  duties  as  guardian  in  the  management  and  investment  of 
the  property  of  his  wards  were  to  be  regulated  by  the  law  of  their 
domicil. 

It  remains  to  apply  the  test  of  that  law  to  Lamar's  acts  or 
omissions  with  regard  to  the  various  kinds  of  securities  in  which 
the  property  of  the  wards  was  invested. 

i.  The  sum  which  Lamar  received  in  New  York  in  money 
from  Mrs.  Abercrombie  he  invested  in  1856  and  1857  in  stock  of 
the  Bank  of  the  Republic  at  New  York,  and  of  the  Bank  of  Com- 
merce at  Savannah,  both  of  which  were  then,  and  continued  till 
the  breaking  out  of  the  war,  in  sound  condition,  paying  good  divi- 
dends. There  is  nothing  to  raise  a  suspicion  that  Lamar,  in  mak- 
ing these  investments,  did  not  use  the  highest  degree  of  prudence ; 
and  they  were  such  as  by  the  law  of  Georgia  or  of  Alabama  he 
might  properly  make.  Nor  is  there  any  evidence  that  he  was 
guilty  of  neglect  in  not  withdrawing  the  investment  in  the  stock 
of  the  Bank  of  Commerce  at  Savannah  before  it  became  worth- 
less. He  should  not  therefore  be  charged  with  the  loss  of  that 
stock. 

The  investment  in  the  stock  of  the  Bank  of  the  Republic  of 
New  York  being  a  proper  investment  by  the  law  of  the  domicil 
of  the  wards,  and  there  being  no  evidence  that  the  sale  of  that 
stock  by  Lamar's  order  in  New  York  in  1862  was  not  judicious, 
or  was  for  less  than  its  fair  market  price,  he  was  not  responsible 
for  the  decrease  in  its  value  between  the  times  of  its  purchase  and 
of  its  sale.  He  had  the  authority,  as  guardian,  without  any  order 
of  court,  to  sell  personal  property  of  his  ward  in  his  own  posses- 
sion, and  to  reinvest  the  proceeds.  Field  v.  Schieifelin,  7  Johns. 
Ch.  150;  Ellis  v.  Essex  Merrimack  Bridge,  2  Pick.  243.  That  his 
motive  in  selling  it  was  to  avoid  its  being  confiscated  by  the  Uni- 
ted States  does  not  appear  to  us  to  have  any  bearing  on  the  rights 
of  these  parties.  And  no  statute  under  which  it  could  have  been 
confiscated  has  been  brought  to  our  notice.  The  act  of  July  17, 
1862,  ch.  195,  §  6,  cited  by  the  appellant,  is  limited  to  property 


284  PRIVATE   INTERNATIONAL   LAW. 

of  persons  engaged  in  or  abetting  armed  rebellion,  which  could 
hardly  be  predicated  of  two  girls  under  thirteen  years  of  age.  12 
Stat.  591.  Whatever  liability,  criminal  or  civil,  Lamar  may  have 
incurred  or  avoided  as  towards  the  United  States,  there  was  noth- 
ing in  his  selling  this  stock,  and  turning  it  into  money,  of  which 
his  wards  had  any  right  to  complain. 

As  to  the  sum  received  from  the  sale  of  the  stock  in  the  Bank 
of  the  Republic,  we  find  nothing  in  the  facts  agreed  by  the  par- 
ties, upon  which  the  case  was  heard,  to  support  the  argument  that 
Lamar,  under  color  of  protecting  his  wards'  interests,  allowed 
the  funds  to  be  lent  to  cities  and  other  corporations  which  were 
aiding  in  the  rebellion.  On  the  contrary,  it  is  agreed  that  that 
sum  was  applied  to  the  purchase  in  New  York  of  guaranteed 
bonds  of  the  cities  of  New  Orleans,  Memphis  and  Mobile,  and  of 
the  East  Tennessee  and  Georgia  Railroad  Company ;  and  the  de- 
scription of  those  bonds,  in  the  receipt  afterwards  given  by  Micou 
to  Lamar,  shows  that  the  bonds  of  that  railroad  company,  and  of 
the  cities  of  New  Orleans  and  Memphis,  at  least,  were  issued 
some  years  before  the  breaking  out  of  the  rebellion,  and  that  the 
bonds  of  the  city  of  Memphis  and  of  the  railroad  company  were 
at  the  time  of  their  issue  indorsed  by  the  State  of  Tennessee.  The 
company  had  its  charter  from  that  State,  and  its  road  was  partly 
in  Tennessee  and  partly  in  Georgia.  Tenn.  St.  1848.  ch.  169. 
Under  the  discretion  allowed  to  a  guardian  or  trustee  by  the  law 
of  Georgia  and  of  Alabama,  he  was  not  precluded  from  investing 
the  funds  in  his  hands  in  bonds  of  a  railroad  corporation,  indorsed 
by  the  State  by  which  it  was  chartered,  or  in  bonds  of  a  city.  As 
Lamar,  in  making  these  investments,  appears  to  have  used  due 
care  and  prudence,  having  regard  to  the  best  pecuniary  interests 
of  his  wards,  the  sum  so  invested  should  be  credited  to  him  in 
this  case,  unless,  as  suggested  at  the  argument,  the  requisite  al- 
lowance has  already  been  made  in  the  final  decree  of  the  Circuit 
Court  in  the  suit  brought  by  the  representative  of  the  other  ward, 
an  appeal  from  which  was  dismissed  by  this  court  for  want  of 
jurisdiction  in  104  U.  S.  465. 

2.  Other  moneys  of  the  wards  in  Lamar's  hands,  arising 
either  from  dividends  which  he  had  received  on  their  behalf,  or 


GUARDIANS.  285 

from  interest  with  which  he  charged  himself  upon  sums  not  in- 
vested, were  used  in  the  purchase  of  bonds  of  the  Confederate 
States,  and  of  the  State  of  Alabama. 

The  investment  in  bonds  of  the  Confederate  States  was 
clearly  unlawful,  and  no  legislative  act  or  judicial  decree  or  de- 
cision of  any  State  could  justify  it.  The  so-called  Confederate 
government  was  in  no  sense  a  lawful  government,  but  was  a  mere 
government  of  force,  having  its  origin  and  foundation  in  rebel- 
lion against  the  United  States.  The  notes  and  bonds  issued  in 
its  name  and  for  its  support  had  no  legal  value  as  money  or  prop- 
erty, except  by  agreement  or  acceptance  of  parties  capable  of 
contracting  with  each  other,  and  can  never  be  regarded  by  a  court 
sitting  under  the  authority  of  the  United  States  as  securities  in 
which  trust  funds  might  be  lawfully  invested.  Thorington  v. 
Smith,  8  Wall,  i ;  Head  v.  Starks,  Chase,  312;  Horn  v.  Lockhart, 
i/  Wall.  570;  Confederate  Note  Case,  19  Wall.  548;  Sprott  v. 
United  States,  20  Wall.  459;  Frets  v.  Stover,  22  Wall.  198;  Alex- 
ander v.  Bryan,  110  U.  S.  414.  An  infant  has  no  capacity,  by 
contract  with  his  guardian,  or  by  assent  to  his  unlawful  acts,  to 
affect  his  own  rights.  The  case  is  governed  in  this  particular  by 
the  decision  in  Horn  v.  Lockhart,  in  which  it  was  held  that  an 
executor  was  not  discharged  from  his  liability  to  legatees  by  hav- 
ing invested   funds,  pursuant  to  a  statute  of  the  State,  and  with 

the  approval  of  the  probate  court  by  which  he  had  been  appointed, 
in  bonds  of  the  Confederate  States,  which  became  worthless  in  his 

hands. 

Neither  the  date  nor  the  purpose  of  the  issue  of  the  bonds  of 
the  State  of  Alabama  is  shown,  and  it  is  unnecessary  to  consider 
the  lawfulness  of  the  investment  in  those  bonds,  because  Lamar 
appears  to  have  sold  them  for  as  much  as  he  had  paid  for  them, 
and  to  have  invested  the  proceeds  in  additional  Confederate  States 
bonds,  and  for  the  amount  thereby  lost  to  the  estate  he  was  ac- 
countable. 

3.  The  stock  in  the  Machanics'  Bank  of  Georgia,  which  had 
belonged  to  William  W.  Sims  in  his  lifetime,  and  stood  on  the 
books  of  the  bank  in  the  name  of  his  administratrix,  and  of  which 
one-third  belonged  to  her  as  his  widow,  and  one-third  to  each  of 


286  PRIVATE   INTERNATIONAL   LAW. 

the  infants,  never  came  into  Lamar's  possession ;  and  upon  a  re- 
quest made  by  him,  the  very  next  month  after  his  appointment, 
the  bank  refused  to  transfer  to  him  any  part  of  it.  He  did  receive 
and  account  for  the  dividends ;  and  he  could  not,  under  the  law 
of  Georgia  concerning  foreign  guardians,  have  obtained  posses- 
sion of  property  of  his  wards  within  that  State  without  the  con- 
sent of  the  ordinary.  Code  of  1861,  §§  1834-1839.  The  attempt 
to  charge  him  for  the  value  of  the  principal  of  the  stock  must  fail 
for  two  reasons :  First.  This  very  stock  had  not  only  belonged  to 
the  father  of  the  wards  in  his  lifetime,  but  it  was  such  stock  as  a 
guardian  or  trustee  might  properly  invest  in  by  the  law  of  Geor- 
gia. Second.  No  reason  is  shown  why  this  stock,  being  in  Geor- 
gia, the  domicil  of  the  wards,  should  have  been  transferred  to  a 
guardian  who  had  been  appointed  in  New  York  during  their  tem- 
porary residence  there. 

The  same  reasons  are  conclusive  against  charging  him  with 
the  value  of  the  bank  stock  in  Georgia,  which  was  owned  by  Mrs. 
Abercrombie  in  her  own  right,  and  to  which  Mr.  Abercrombie  be- 
came entitled  upon  her  death.  It  is  therefore  unnecessary  to  con 
sider  whether  there  is  sufficient  evidence  of  an  immediate  sur- 
render by  him  of  her  interest  to  her  children. 

The  result  is,  that 

Both  the  decrees  of  the  Circuit  Court  in  this  case  must  be  re- 
versed, and  the  case  remanded  for  further  proceedings  in 
conformity  with  this  opinion. 


LAMAR  v.  MICOU,  114  U.  S.  218,  (1884). 

This  was  a  petition  for  a  rehearing  of  Lamar  v.  Micou,  de- 
cided at  this  term  and  reported  112  U.  S.  452. 

Mr.  Stephen  P.  Nash  and  Mr.  George  C.  Holt  filed  a  brief 
for  the  petitioner. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  is  a  petition  for  a  rehearing  of  an  appeal  from  a  decree 
of  the  Circuit  Court  of  the  United  States  for  the  Southern  Dis- 
trict of  New  York,  upon  a  bill  filed  against  the  executor  of  a 
guardian  by  the  administratrix  of  his  ward. 


GUARDIANS.  287 

Gazaway  B.  Lamar  was  appointed  in  1F55,  by  a  surrogate's 
court  in  New  York,  guardian  of  the  person  and  property  of  Mar- 
tha M.  Sims.  The  bill  alleged  that  at  the  time  of  the  appointment 
the  ward  resided  in  New  York.  The  answer  alleged  that  at  that 
time  she  was  temporarily  residing  there,  and  was  then,  as  well  as 
in  1861,  a  citizen  of  Alabama.  The  hearing  of  the  merits  of  the 
case  was  had  in  the  Circuit  Court  upon  the  pleadings,  and  upon 
certain  facts  stated  by  the  defendant  and  admitted  by  the  plaintiff, 
which,  so  far  as  they  affected  the  domicil  of  the  ward,  were  as 
follows : 

William  W.  Sims,  the  ward's  father,  died  at  Savannah  in  the 
State  of  Georgia  in  1850,  leaving  two  infant  daughters,  and  a 
widow,  who  in  1853  married  a  citizen  of  New  lork,  and  thence- 
forth reside  1  with  him  in  that  State  until  1856  ,when  they  re- 
moved to  Connecticut,  and  resided  there  until  her  death  in  1859. 
The  two  infants  lived  with  their  mother  and  stepfather  in  New 
York  (where  Lamar  was  appointed  in  1855  guardian  of  both  in- 
fants) and  in  Connecticut,  from  her  second  marriage  until  her 
death,  and  then  went  to  Georgia,  and  thenceforth  resided  with 
their  father's  mother  and  her  daughter  and  only  living  child,  their 
aunt,  at  first  in  Georgia  and  afterwards  in  Alabama. 

Upon  those  facts,  this  court  assumed  the  domicil  of  William 
W.  Sims  to  have  been  in  Georgia ;  and  held  that  the  domicil  of  his 
children  continued  to  be  in  that  State  throughout  their  residence 
with  their  mother  and  her  second  husband  in  New  York  and  Con- 
necticut, and  until  their  return  to  Georgia  upon  the  death  of  their 
mother  in  1859,  and  was  thereafter  in  Georgia  or  Alabama;  that 
whether  the  guardian's  domicil  was  in  Georgia  or  New  York,  he 
should  not,  in  accounting  for  his  investments,  be  held  to  a  nar- 
rower range  of  securities  than  was  allowed  by  the  law  of  the 
ward's  domicil ;  and  that  many  of  his  investments  were  justified 
by  the  law  of  Georgia  or  of  Alabama ;  and  therefore  reversed  the 
decree  of  the  Circuit  Court,  which  had  held  him  to  account  ac- 
cording to  the  law  of  New  York  for  the  manner  in  which  he  had 
invested  the  property.     112  U.  S.  452. 

The  questions  so  passed  upon,  though  hardly  touched  by 
either  counsel  at  the  first  argument,  arose  upon  the  facts  admitted, 


288  PRIVATE    INTERNATIONAL   LAW. 

were  vital  to  the  determination  of  the  rights  of  the  parties,  and 
could  not  be  overlooked  by  this  court.  The  importance  and  com- 
parative novelty  of  some  of  the  questions  induced  the  court  to 
invite  the  submission  of  a  full  brief  in  support  of  the  petition  for 
a  rehearing.  But,  upon  careful  consideration  of  the  petition  and 
brief,  the  court  has  seen  no  ground  for  changing  its  opinion,  and 
has  not  thought  it  necessary  to  add  anything,  beyond  what  has 
been  suggested  by  examination  of  the  authorities  cited  for  the 
petitioner. 

In  Prit  chard  v.  Norton,  106  L.  S.  124,  the  point  decided  was 
that  the  validity  and  effect  of  a  bond,  executed  in  New  York,  to 
indemnify  the  obligee  therein  against  his  liability  upon  an  appeal 
bond  executed  by  him  in  a  suit  in  Louisiana,  was  to  be  governed 
by  the  law  <  f  Louisiana.The  decision  was  based  upon  the  funda- 
mental rule,  or,  in  the  words  of  Chief  Justice  Marshall,  the  "prin- 
ciple of  universal  law" — "that  in  every  forum  a  contract  is  gov- 
erned by  the  law  with  a  view  to  which  it  was  made."  Way  man 
v.  Southard,  10  Wheat.  1,  48.  And  reference  was  made  to  two 
recent  English  cases  of  high  authority,  in  which,  by  force  of  that 
rule,  the  effect  of  a  contract  of  affreightment,  and  of  a  bottomry 
bond  given  by  the  master,  was  held  to  be  governed,  not  by  the  law 
of  the  place  where  the  contract  was  made,  nor  by  that  of  the  place 
where  it  was  to  be  performed,  nor  yet  by  the  law  of  the  place  in 
which  the  suit  was  brought,  but  by  the  law  of  the  country  to 
which  the  ship  belonged.  Lloyd  v.  Guibert,  6  B.  &  S.  100;  S.  C.: 
L.  R.  1  Q.  B.  115 ;  The  Gaetano  &  Maria,  7  P.  D.  137. 

In  Lloyd  v.  Guibert,  Mr.  Justice  Willes,  delivering  the  judg- 
ment of  the  Court  of  Exchequer  Chamber,  said  that  when  "dis- 
putes arise,  not  as  to  the  terms  of  the  contract,  but  as  to  their  ap- 
plication to  unforeseen  questions,  which  arise  incidentally  or  acci- 
dentally in  the  course  of  performance,  and  which  the  contract 
does  not  answer  in  terms,  yet  which  are  within  the  sphere  of  the 
relation  established  thereby,"  "it  is  necessary  to  consider  by  what 
general  law  the  parties  intended  that  the  transaction  should  be 
governed,  or  rather  to  what  general  law  it  is  just  to  presume  that 
they  have  submitted  themselves  in  the  matter."  6  B.  &  S.  130; 
L.  R.  1  Q.  B.  120.     And  in  The  Gaetano  &  Maria,  Lord  Justice 


GUARDIANS.  289 

Brett,  with  whom  Lord  Coleridge  and  Lord  Justice  Cotton  con- 
curred, pointed  out  that  the  matter  before  the  court  was  "not  the 
question  of  the  construction  of  a  contract,  but  of  what  authority 
arises  out  of  the  fact  of  a  contract  having  been  entered  into."  7 
P.  D.  147. 

The  question  in  what  securities  a  guardian  may  lawfully  in- 
vest is  not  one  of  mere  construction  of  the  contract  expressed  in 
the  guardian's  bond  or  implied  by  his  acceptance  of  the  guardian- 
ship, but  rather  of  what  is  "within  the  sphere  of  the  relation  es- 
tablished thereby,"  or  "what  authority  arises  out  of  the  fact  of  a 
contract  having  been  entered  into."  And  the  very  terms  of  La- 
mar's bond  do  not  point  to  the  law  of  New  York  only,  but  impose 
a  general  obligation  to  "discharge  the  duty  of  a  guardian  to  the 
said  minor  according  to  law,"  as  well  as  to  render  accounts  of  the 
property  and  of  his  guardianship  to  any  court  having  cognizance 
thereof.     See  112  U.  S.  455. 

The  view  heretofore  expressed  by  this  court,  that  the  domicil 
of  the  guardian  is  immaterial,  and  that,  as  a  general  rule,  the 
management  and  investment  of  the  ward's  property  are  to  be  gov- 
erned by  the  law  of  the  domicil  of  the  ward,  although,  so  far  as 
the  remedy  is  concerned,  the  accounting  must  conform  to  the  law 
of  the  place  in  which  the  liability  of  the  guardian  is  sought  to  be 
enforced,  accords  with  the  statements  of  Bar,  as  well  in  the  pass- 
age quoted  by  the  petitioner,  as  in  that  referred  to  in  the  former 
opinion ;  and  the  only  decision  of  a  Scotch  court  brought  to  Dur 
notice  tends  in  the  same  direction,  although  the  Scotch  commen- 
tators treat  the  question  as  an  open  one.  Bar  International  Law, 
§§  87,  106;  (Gillespie's  translation)  357,  359,  438,  445  note; 
Lamb  v.  Montgomerie  (1858)  20  Scotch  Ct.  of  Sess.  Cas.  (2d 
series)  1323;  Fraser  on  Parent  &  Child,  609. 

The  cases  of  Preston  v.  Melville,  8  CI.  &  Fin.  1,  and  Black- 
wood v.  The  Queen,  8  App.  Cas.  82,  cited  for  the  petitioner,  re- 
late only  to  the  place  in  which  personal  property  of  a  deceased 
person  is  to  be  administered,  or  is  subject  to  probate  duty. 

The  petitioner,  while  admitting  that  the  statement  in  the  for- 
mer opinion  that  the  domicil  of  the  father  was  in  Georgia  was  a 
natural  inference  from  the  facts  stated  in  the  record,  and  that  it 


290  PRIVATE    INTERNATIONAL  LAW. 

is  probable  that  the  wards  never  acquired  a  domicil  in  any  North- 
ern State,  has  now  offered  affidavits  tending  to  show  that  the  fa- 
ther's domicil  at  the  time  of  his  death  and  for  six  years  before, 
was  not  in  Georgia,  but  in  Florida ;  and  hc.s  referred  to  statutes 
and  decisions  in  Florida  as  showing  that  the  law  of  that  State  in 
the  matter  of  investments  did  not  differ  from  the  law  of  New 
York.  Florida  Stat.  November  20,  1828,  §  35 ;  Thompson's  Di- 
gest, 207,  208;  Moore  v.  Hamilton,  4  Florida,  112,  and  7  Flori- 
da, 44. 

But  if,  against  all  precedent,  this  new  evidence  could  be  ad- 
mitted after  argument  and  decision  in  this  .  ourt,  it  would  afford 
no  ground  for  arriving  at  a  different  conclusion  upon  the  merits 
of  the  case. 

If  the  domicil  of  the  father  was  in  Florida  at  the  time  of  his 
death  in  1850,  then,  according  to  the  principles  stated  in  the  for- 
mer opinion,  the  domicil  of  his  children  continued  to  be  in  that 
State  until  the  death  of  their  mother  in  Connecticut  in  1859.  ^n 
that  view  of  the  case,  the  question  would  be  whether  they  after- 
wards acquired  a  domicil  in  Georgia  by  taking  up  their  residence 
there  with  their  paternal  grandmother.  A1  though  some  books 
speak  only  of  the  father,  or,  in  case  of  his  death,  the  mother,  as 
guardian  bv  nature;  1  Bl.  Com.  461 ;  2  Kent  Com.  219;  it  is  clear 
that  the  grandfather  or  grandmother,  when  the  next  of  kin,  is 
such  a  guardian.  Hargrave's  note,  66  to  Co  .Lit.  88  b;  Reeve, 
Domestic  Relations,  315.  See  also  Darden  v.  Wyatt,  15  Georgia, 
414.  In  the  present  case,  the  infants,  when  their  mother  died 
and  they  went  to  the  home  of  their  paternal  grandmother,  were 
under  ten  years  of  age;  the  grandmother,  who  appears  to  have 
been  their  only  surviving  grandparent  and  their  next  of  kin,  ind 
whose  only  living  child,  an  unmarried  daughter,  resided  with  her, 
was  the  head  of  the  family ;  and  upon  the  facts  agreed  it  is  evi- 
dent that  the  removal  of  the  infants  after  the  death  of  both  par- 
ents to  the  home  of  their  grandmother  in  Georgia  was  with  7^a- 
mar's  consent.  Under  these  circumstances,  there  can  be  no  doubt 
tnat  by  taking  up  their  residence  with  her  the^  acquired  her  domi- 
cil in  that  State  in  1859,  if  their  domicil  was  not  already  there. 
And  there  being  no  evidence  that  any  of  Lamar's  investments  had 


ADMINISTRATION.  291 

diminished  in  value  before  that  time,  it  is  immaterial  whether  the 
previous  domicil  of  the  wards  was  in  Florida  or  in  Georgia,  inas- 
much as  the  propriety  of  his  investments  was  therafter  to  be  gov- 
erned by  the  law  of  Georgia. 

The  law  of  any  State  of  the  Union,  whether  depending  upon 
statutes  or  upon  judicial  opinions,  is  a  matter  of  which  the  courts 
of  the  United  States  are  bound  to  take  judicial  notice,  without 
plea  or  proof.  OzVings  v.  Hull,  9  Pet.  607;  Pennington  v.  Gib- 
son, 16  How.  65 ;  Covington  Drawbridge  Co.  v.  Shepherd,  20 
How.  227.  And  nothing  has  now  been  adduced  tending  to  show- 
that,  as  applied  to  the  facts  admitted  by  the  parties,  either  the  law 
of  Georgia  or  the  law  of  New  York  was  other  than  we  have  held 
it  to  be. 

The  question  whether,  as  matter  of  fact,  Lamar  acted  with 
due  care  and  prudence  in  making  his  investments,  was  argued  at 
the  former  hearing,  and  no  reason  is  shown  for  reopening  that 
question. 

Rehearing  denied. 

ADMINISTRATION. 
WILKINS  v.  ELLETT,  108  TJ.  S.  256,  (1883). 

The  nature  of  the  action  and  the  facts  appear  in  the  opinion. 

Mr.  W.  Y.  C.  Humes  and  Mr.  D.  H.  Poston  for  plaintiff  in 
error. 

Mr.  S.  P.  JValker  and  Mr.  R.  T.  McNeal  for  defendant  in 
error. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  is  an  action  of  assumpsit  on  the  common  counts,  brought 
in  the  Circuit  Court  of  the  United  States  for  the  Western  District 
of  Tennessee.  The  plaintiff  is  a  citizen  of  Virginia,  and  sues  as 
administrator,  appointed  in  Tennessee,  of  the  estate  of  Thomas 
X.  Quarles.  The  defendant  is  a  citizen  of  Tennessee,  and  sur- 
viving, partner  of  the  firm  of  F.  H.  Clark  &  Company.  The  an- 
swer sets  up  that  Quarles  was  a  citizen  of  Alabama  at  the  time  of 
his  death ;  that  the  sum  sued  for  has  been  paid  to  William  Good- 
loe,  appointed  his  administrator  in  that  State,  and  has  been  inven- 


292  PRIVATE   INTERNATIONAL   LAW. 

toried  and  accounted  for  by  him  upon  a  final  settlement  of  his  ad- 
ministration ;  and  that  there  are  no  creditors  of  Ouarles  in  Tennes- 
see. The  undisputed  facts,  appearing  by  the  bill  of  exceptions, 
are  as  follows : 

Quarles  was  born  at  Richmond,  Virginia,  in  1835.  In  1839 
his  mother,  a  widow,  removed  with  him,  her  only  child,  to  Court - 
land,  Alabama.  They  lived  there  together  until  1856,  and  she 
made  her  home  there  until  her  death  in  1864.  In  1856  he  went 
to  Memphis,  Tennessee,  and  there  entered  the  employment  of  F. 
H.  Clark  &  Company,  and  continued  in  their  employ  as  a  clerk, 
making  no  investments  himself,  but  leaving  his  surplus  earnings 
on  interest  in  their  hands,  until  January,  1866,  when  he  went  to 
the  house  of  a  cousin  in.  Courtland.  Alabama,  and  while  there  died 
by  an  accident,  leaving  personal  estate  in  Alabama.  On  the  27th 
of  January,  1866,  Goodloe  took  out  letters  of  administration  in 
Alabama,  and  in  February,  1866,  went  to  Memphis,  and  there, 
upon  exhibiting  his  letters  of  administration,  received  from  the 
defendant  the  sum  of  money  due  to  Quarles,  amounting  to  $3,- 
455.22  (which  is  the  same  for  which  this  suit  is  brought),  and  in- 
cluded it  in  his  inventory,  and  in  his  final  account,  which  was  al- 
lowed by  the  probate  court  in  Alabama.  There  were  no  debts 
due  from  Ouarles  in  Tennessee.  All  his  next  of  kin  resided  in 
Virginia  or  in  Alabama ;  and  no  administration  was  taken  out  on 
his  estate  in  Tennessee  until  June,  1866,  when  letters  of  adminis- 
tration were  there  issued  to  the  plaintiff. 

There  was  conflicting  evidence  upon  the  question  whether 
the  domicil  of  Quarles  at  the  time  of  his  death  was  in  Alabama  or 
in  Tennessee.  The  jury  found  that  it  was  in  Tennessee,  under 
instructions,  the  correctness  of  which  we  are  not  prepared  to  af- 
firm, but  need  not  consider,  because  assuming  them  to  be  correct, 
we  are  of  opinion  that  the  court  erred  in  instructing  the  jury  that, 
if  the  domicil  was  in  Tennessee,  they  must  find  for  the  plaintiff ; 
and  in  refusing  to  instruct  them,  as  requested  by  the  defendant, 
that  the  payment  to  the  Alabama  administrator  before  the  ap- 
pointment of  one  in  Tennessee,  and  there  being  no  Tennessee 
creditors,  was  a  valid  discharge  of  the  defendant,  without  refer- 
ence to  the  domicil. 


ADMINISTRATION.  293 

There  is  no  doubt  that  the  succession  to  the  personal  estate 
of  a  deceased  person  is  governed  by  the  law  of  his  domicil  at  the 
time  of  his  death ;  that  the  proper  place  for  the  principal  admin- 
istration of  his  estate  is  that  domicil ;  that  administration  may  also 
be  taken  out  in  any  place  in  which  he  leaves  personal  property; 
and  that  no  suit  for  the  recovery  of  a  debt  due  to  him  at  the  time 
of  his  death  can  be  brought  by  an  administrator  as  such  in  any 
State  in  which  he  has  not  taken  out  administration. 

But  the  reason  for  this  last  rule  is  the  protection  of  the  rights 
of  citizens  of  the  State  in  which  the  suit  is  brought;  and  the  ob- 
jection does  not  rest  upon  any  defect  of  the  administrator's  title 
in  the  property,  but  upon  his  personal  incapacity  to  sue  as  admin- 
istrator beyond  the  jurisdiction  which  appointed  him. 

If  a  debtor,  residing  in  another  State,  comes  into  the  State 
in  which  the  adrhinistrator  has  been  appointed,  and  there  pays 
him,  the  payment  is  a  valid  discharge  everywhere.  If  the  debtor, 
being  in  that  State,  is  there  sued  by  the  administrator,  and  judg- 
ment recovered  against  him,  the  administrator  may  bring  suit 
in  his  own  name  upon  that  judgment  in  the  State  where  the  debtor 
resides.  Talmagc  v.  Chapel,  16  Mass.  71 ;  Biddle  v.  Wilkins,  1 
Fet.  686. 

The  administrator,  by  virtue  of  his  appointment  and  author- 
ity as  such,  obtains  the  title  in  promissory  notes  or  other  written 
evidences  of  debt,  held  by  the  intestate  at  the  time  of  his  death, 
and  coming  to  the  possession  of  the  administrator ;  and  may  sell, 
transfer  and  indorse  the  same;  and  the  purchasers  or  indorsees 
may  maintain  actions  in  their  own  names  against  the  debtors  in 
another  State,  if  the  debts  are  negotiable  promissory  notes,  or  if 
the  law  of  the  State  in  which  the  action  is  brought  permits  the 
assignee  of  a  chose  in  action  to  sue  in  his  own  name.  Harper  v. 
Butler,  2  Pet.  239;  Shaw,  C.  J.,  in  Rand  v.  Hubbard,  4  Met.  252, 
258-260;  Petersen  v.  Chemical  Bank,  32  N.  Y.  21.  And  on  a 
note  made  to  the  intestate,  payable  to  bearer,  an  administrator  ap- 
pointed in  one  State  may  sue  in  his  own  name  in  another  State. 
Barrett  v.  Barrett,  8  Greenl.  353 ;  Robinson  v.  Crandall,  9  Wend. 

425- 

In  accordance  with  these  views,  it    was  held  by    this  court, 


294  PRIVATE    INTERNATIONAL   LAW. 

when  this  case  was  before  it  after  a  former  trial,  at  which  the 
domicil  of  the  intestate  appeared  to  have  been  in  Alabama,  that 
the  payment  in  Tennessee  to  the  Alabama  administrator  was  good 
as  against  the  administrator  afterwards  appointed  in  Tennessee. 
Wilkins  v.  Ellett,  9  Wall.  740. 

The  fact  that  the  domicil  of  the  intestate  has  now  been  found 
by  the  jury  to  be  in  Tennessee  does  not  appear  to  us  to  make  any 
difference.  There  are  neither  creditors  nor  next  of  kin  in  Tennes- 
see. The  Alabama  administrator  has  inventoried  and  accounted 
for  the  amount  of  this  debt  in  Alabama.  The  distribution  among 
the  next  of  kin,  whether  made  in  Alabama  or  in  Tennessee,  must 
be  according  to  the  law  of  the  domicil ;  and  it  has  not  been  sug- 
gested that  there  is  any  difference  between  the  laws  of  the  twj 
States  in  that  regard. 

The  judgment  must  therefore  be  reversed,  and  the  case  re- 
manded with  directions  to  set  aside  the  verdict  and  to  order  a 

New  trial. 


JOHNSON  v.  POWERS,  139  U.  S.  156,  (1891). 

Appeal  from  a  decree  dismissing  a  bill  in  equity.  The  case 
is  stated  in  the  opinion. 

Mr.  A.  H.  Garland  (with  whom  was  Mr.  H.  J.  May  on  his 
brief)  for  appellant.  Mr.  Joseph  P.  Whittemore  filed  a  brief  for 
same. 

Mr.  William  F.  Cogswell  for  appellees. 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity,  filed  in  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  New  York,  by  George  K. 
Johnson,  a  citizen  of  Michigan,  in  behalf  of  himself  and  of  all 
other  persons  interested  in  the  administration  of  the  assets  of 
Nelson  P.  Stewart,  late  of  Detroit  in  the  county  of  Wayne  and 
State  of  Michigan,  against  several  persons,  citizens  of  New  York, 
alleged  to  hold  real  estate  in  New  York  under  conveyances  made 
by  Stewart  in  fraud  of  his  creditors. 

The  bill  is  founded  upon  the  jurisdiction  in  equity  of  the  Cir- 
cuit Court  of  the  United  States,  independent  of  statutes  or  prac- 


ADMINISTRATION.  295 

tice  in  any  State,  to  administer,  as  between  citizens  of  different 
States,  any  deceased  person's  assets  within  its  jurisdiction. 
Payne  v.  Hook,  7  Wall.  425;  Kennedy  v.  Creswell.  101  U.  S.  641. 

At  the  threshold  of  the  case,  we  are  met  by  the  question 
whether  the  plaintiff  shows  such  an  interest  in  Stewart's  estate  as 
to  be  entitled  to  invoke  the  exercise  of  this  jurisdiction. 

He  seeks  to  maintain  his  bill,  both  as  administrator,  and  as 
a  creditor,  in  behalf  of  himself  and  all  other  creditors  of  Stewart. 

The  only  evidence  that  he  was  either  administrator  or  credi- 
tor is  a  duly  certified  copy  of  a  record  of  the  probate  court  of  the 
county  of  Wayne  and  State  of  Michigan,  showing  his  appoint- 
ment by  that  court  as  administrator  of  Stewart's  estate;  the  sub- 
sequent appointment  by  that  court,  pursuant  to  the  statutes  of 
Michigan,  of  commissioners  to  receive,  examine  and  adjust  all 
claims  of  creditors  against  the  estate ;  and  the  report  of  those  com- 
missioners, allowing  several  claims,  including  one  to  this  plain- 
tiff, "George  K.  Johnson,  for  judgments  against  claimant  in 
Wayne  Circuit  Court  as  endorser,"  and  naming  him  as  adminis- 
trator as  the  party  objecting  to  the  allowance  of  all  the  claims. 

The  plaintiff  certainly  cannot  maintain  this  bill  as  adminis- 
trator of  Stewart,  even  if  the  bill  can  be  construed  as  framed  i.i 
that  aspect ;  because  he  admits  that  he  has  never  taken  out  letters 
of  administration  in  New  York ;  and  the  letters  of  administration 
granted  to  him  in  Michigan  confer  no  power  beyond  the  limits  of 
that  State,  and  cannot  authorize  him  to  maintain  any  suit  in  the 
courts,  either  State  or  national,  held  in  any  ether  State.  Stacy  v. 
Thrasher,  6  How.  44,  58;  Noonan  v.  Bradley,  9  Wall.  394. 

The  question  remains  whether,  as  against  these  defendants, 
the  plaintiff  has  proved  himself  to  be  a  creditor  of  Stewart.  The 
only  evidence  on  this  point,  as  already  observed,  is  the  record  of 
the  proceedings  before  commissioners  appointed  by  the  probate 
court  in  Michigan.  It  becomes  necessary  therefore  to  consider 
the  nature  and  the  effect  of  those  proceedings. 

They  were  had  under  the  provisions  of  the  General  Statutes 
of  Michigan,  (2  Howell's  Statutes,  §§  5888-5906,)  "the  general 
idea''  of  which,  as  stated  by  Judge  Cooley,  "is  that  all  claims 
against  the  estates  of  deceased  persons  shall  be  duly  proved  be- 


296  PRIVATE    INTERNATIONAL  LAW. 

fore  commissioners  appointed  to  hear  them,  or  before  the  probate 
court  when  no  commissioners  are  appointed.  The  commission- 
ers act  judicially  in  the  allowance  of  claims,  and  the  administrator 
cannot  bind  the  estate  by  admitting  their  correctness,  but  must 
leave  them  to  be  proved  in  the  usual  mode."  Clark  v.  Davis,  32 
Michigan,  154,  157.  The  commissioners,  when  one  appointed, 
become  a  special  tribunal,  which,  for  most  purposes,  is  indepen- 
dent of  the  probate  court,  and  from  which  either  party  may  appeal 
to  the  circuit  court  of  the  county;  and,  as  against  an  adverse 
claimant,  the  administrator,  general  or  special,  represents  the  es- 
tate, both  before  the  commissioners  and  upon  the  appeal.  2  How- 
ell's Statutes,  §§  5907-5917;  Lothrop  v.  Conely,  39  Michigan,  757. 
The  decision  of  the  commissioners,  or  of  the  circuit  court  on  ap- 
peal, should  properly  be  only  an  allowance  or  disallowance  of  the 
claim,  and  not  in  the  form  of  a  judgment  at  common  law.  La 
Roe  v.  Freeland,  8  Michigan,  530.  But,  as  between  the  parties 
to  the  controversy,  and  as  to  the  payment  of  the  claim  out  of  the 
estate  in  the  control  of  the  probate  court,  it  has  the  effect  of  a 
judgment,  and  cannot  be  collaterally  impeached  by  either  of  those 
parties.     Shurbun  v.  Hooper,  40  Michigan,  503. 

Those  statutes  provide  that,  when  the  administrator  declines 
to  appeal  from  a  decision  of  the  commissioners,  any  person  inter- 
ested in  the  estate  may  appeal  from  that  decision  to  the  circuit 
court;  and  that,  when  a  claim  of  the  administrator  against  the 
estate  is  disallowed  by  the  commissioners  and  he  appeals,  he  shall 
give  notice  of  his  appeal  to  all  concerned  by  personal  service  or  bv 
publication.  2  Howell's  Statutes,  §§  5916,  5917.  It  may  well  be 
doubted  whether,  within  the  spirit  and  intent  of  these  provisions, 
the  administrator,  when  he  is  also  the  claimant,  is  not  bound  to 
give  notice  to  other  persons  interested  in  the  estate,  in  order  that 
they  may  have  an  opportunity  to  contest  his  claim  before  the  com- 
missioners ;  and  whether  an  allowance  of  his  claim,  as  in  this  case, 
in  the  absence  of  any  impartial  representative  of  the  estate,  and 
of  other  persons  interested  therein,  can  be  of  any  binding  effect, 
even  in  Michigan.     See  Lothrop  v.  Conely,  above  cited. 

But  we  need  not  decide  that  point,  because  upon  broader 
grounds  it  is  quite  clear  that  those  proceedings  are  incompetent 


ADMINISTRATION.  297 

evidence,  in  this  suit  and  against  these  defendants,  that  the  plain- 
tiff is  a  creditor  of  Stewart  or  of  his  estate. 

A  judgment  in  rem  binds  only  the  property  within  the  con- 
trol of  the  court  which  rendered  it;  and  a -judgment  in  personam 
binds  only  the  parties  to  that  judgment  and  those  in  privity  with 
them. 

A  judgment  recovered  against  the  administrator  of  a  de- 
ceased person  in  one  State  is  no  evidence  of  debt,  in  a  subsequent 
suit  by  the  same  plaintiff  in  another  State,  either  against  an  ad- 
ministrator, whether  the  same  or  a  different  person,  appointed 
there,  or  against  any  other  person  having  assets  of  the  deceased. 
slspden  v.  Nixon,  4  How.  467;  Stacy  v.  Thrasher,  6  How.  44; 
AicLean  v.  Meek,  18  How.  16;  Low  v.  Bartlett,  8  Allen,  259. 

In  Stacy  v.  Thrasher,  in  which  a  judgment,  recovered  in  one 
State  against  an  administrator  appointed  in  that  State,  upon  an  al- 
leged debt  of  the  intestate,  was  held  to  be  incompetent  evidence  of 
the  debt  in  a  suit  brought  by  the  same  plaintiff  in  the  Circuit  Court 
of  the  United  States  held  within  another  State  against  an  admin- 
istrator there  appointed  of  the  same  intestate,  the  reasons  given 
by  Air.  Justice  Grier  have  so  strong  a  bearing  on  the  case  before 
us,  and  on  the  argument  of  the  appellant,  as  to  be  worth  quoting 
from : 

,  "The  administrator  receives  his  authority  from  the  ordinary, 
or  other  officer  of  the  government  where  the  goods  of  the  intestate 
are  situate.  But  coming  into  such  possession  by  succession  to 
the  intestate,  and  encumbered  with  the  duty  to  pay  his  debts,  he 
is  considered  in  law  as  in  privity  with  him,  and  therefore  bound 
or  estopped  by  a  judgment  against  him.  Yet  his  representation 
of  his  intestate  is  a  qualified  one,  and  extends  not  beyond  the  as- 
sets of  which  the  ordinary  had  jurisdiction."    6  How.  58. 

In  answering  the  objection  that  to  apply  these  principles  to  a 
judgment  obtained  in  another  State  of  the  Union  would  be  to 
deny  it  the  faith  and  credit,  and  the  effect,  to  which  it  was  en- 
titled by  the  Constitution  and  laws  of  the  United  States,  he  ob- 
served that  it  was  evidence,  and  conclusive  by  way  of  estoppel, 
only  between  the  same  parties,  or  their  privies,  or  on  the  same 
subject  matter  when  the    proceeding  was    in  rem;  and  that  the 


298  PRIVATE   INTERNATIONAL   LAW. 

parties  to  the  judgments  in  question  were  not  the  same;  neither 
were  they  privies,  in  blood,  in  law  or  by  estate ;  and  proceeded  as 
follows : 

"An  administrator  under  grant  of  administration  in  one  State 
stands  in  none  of  these  relations  to  an  administiator  in  another. 
Each  is  privy  to  the  testator,  and  would  be  estopped  by  a  judg- 
ment against  him;  but  they  have  no  privity  with  each  other,  in 
law  or  in  estate.  They  receive  their  authority  from  different  sov- 
ereignties, and  over  different  property.  The  authority  of  each 
is  paramount  to  the  other.  Each  is  accountable  to  the  ordinary 
from  whom  he  receives  his  authority.  Nor  does  the  one  come  by 
succession  to  the  other  into  the  trust  of  the  same  pi  operty,  encum- 
bered by  the  same  debts."     6  How.  59,  60. 

"It  is  for  those  who  assert  this  privity  to  show  wherein  it  lies, 
and  the  argument  for  it  seems  to  be  this:  That  the  judgment 
against  the  administrator  is  against  the  estate  of  the  intestate,  and 
that  his  estate,  wheresoever  situate,  is  liable  to  pay  his  debts ; 
therefore  the  plaintiff,  having  once  established  his  claim  against 
the  estate  by  the  judgment  of  a  court,  should  not  be  called  on  10 
make  proof  of  it  again.  This  argument  assumes  that  the  judg- 
ment is  in  rem,  and  not  in  personam,  or  that  the  estate  has  a  sort 
of  corporate  entity  and  unity.  But  this  is  not  true,  either  in  fact 
or  in  legal  construction.  The  judgment  is  against  the  person  of 
the  administrator,  that  he  shall  pay  the  debt  of  the  intestate  out 
of  the  funds  committed  to  his  care.  If  there  be  another  admin- 
istrator in  another  State,  liable  to  pay  the  same  debt,  he  may  be 
subjected  to  a  like  judgment  upon  the  same  demand,  but  the  as- 
sets in  his  hands  cannot  be  affected  by  a  judgment  to  which  he 
is  personally  a  stranger."  "The  laws  and  courts  of  a  State  can 
only  affect  persons  and  things  within  their  jurisdiction.  Conse- 
quently, both  as  to  the  administrator  and  the  property  confided 
to  him,  a  judgment  in  another  State  is  res  inter  alios  acta.  It 
cannot  be  even  prima  facie  evidence  of  a  debt ;  for  if  it  have  any 
effect  at  all,  it  must  be  as  a  judgment,  and  operate  by  way  of  es- 
toppel."    6  How.  60,  61. 

In  Low  v.  Bartlctt,  above  cited,  following  the  decisions  of 
this  court,  it  was  held  that  a  judgment  allowing  a  claim  against 


ADMINISTRATION.  299 

the  estate  of  a  deceased  person  in  Vermont,  under  statutes  simi- 
lar to  those  of  Michigan,  was  not  competent  evidence  of  debt  in 
a  suit  in  equity  brought  in  Massachusetts  by  the  same  plaintiff 
against  an  executor  appointed  there,  and  against  legatees  who  had 
received  money  from  him;  the  court  saying:  "The  judgment  in 
Vermont  was  in  no  sense  a  judgment  against  them,  nor  against 
the  property  which  they  had  received  from  the  executor."  8  Al- 
len, 266. 

In  the  case  at  bar,  the  allowance  of  Johnson's  claim  by  the 
commissioners  appointed  by  the  probate  court  in  Michigan,  giv- 
ing it  the  utmost  possible  effect,  faith  and  credit,  yet,  if  consid- 
ered as  a  judgment  in  rem,  bound  only  the  assets  within  the  juris- 
diction of  that  court,  and,  considered  as  a  judgment  inter  partes, 
bound  only  the  parties  to  it  and  their  pi  ivies.  It  was  not  a  judg- 
ment against  Stewart  in  his  lifetime,  ncr  against  his  estate  wher- 
ever it  might  be;  but  only  against  his  assets  and  bis  administrator 
in  Michigan.  The  only  parties  to  the  decision  of  the  commission- 
ers were  Johnson,  in  his  personal  capacity,  as  claimant,  and  John- 
son, in  his  representative  capacity,  as  administrator  of  those  as- 
sets, as  defendant.  The  present  defendants  were  not  parties  to 
that  judgment,  nor  in  privity  with  Johnson  in  either  capacity.  If 
any  other  claimant  in  those  proceedings  had  been  the  plaintiff 
here,  the  allowance  of  his  claim  in  Michigan  would  have  been  no 
evidence  of  any  debt  due  to  him  from  the  deceased,  in  this  suit 
brought  in  New  York  to  recover  alleged  property  of  the  deceased 
in  New  York  from  third  persons,  none  of  whom  were  parties 
to  those  proceedings,  or  in  privity  with  either  party  to  them. 
The  fact  that  this  plaintiff  was  himself  the  only  party  on  both 
sides  of  those  proceedings  cannot,  to  say  the  least,  give  the  de- 
cision therein  any  greater  effect  against  these  defendants. 

The  objection  is  not  that  the  plaintiff  cannot  maintain  this 
bill  without  first  recovering  judgment  on  his  debt  in  New  York, 
but  that  there  is  no  evidence  whatever  of  his  debt  except  the  judg- 
ment in  Michigan,  and  that  that  judgment,  being  res  inter  alios 
acta,  is  not  competent  evidence  against  these  defendants. 

This  objection  being  fatal  to  the  maintenance  of  this  bill, 
there  is  no  occasion  to  consider  the  other  questions,  of  law  or  of 


300  PRIVATE  INTERNATIONAL  LAW. 

fact,  mentioned  in  the  opinion  of  the  Circuit  Court  and  discussed 

at  the  bar. 

Decree  affirmed. 


REYNOLDS  v.  MC  MULLEN,  55  MICH.  568,  (1885). 

Appeal  from  Gratiot.     (Hart,  J.)     Oct.  24. — Jan.  14. 

Foreclosure  bill.     Defendants  appeal.     Affirmed. 

Smith  &  Sessions  for  complainant.  A  foreign  public  admin- 
istrator cannot  maintain  an  action  in  Michigan :  Goodwin  v.  Jones, 
3  Mass.  514;  Stearns  v.  Bumham,  5  Me.  263;  Vickery  v.  Beir,  16 
Mich.  50;  Sheldon  v.  Rice  30  Mich.  296,  301;  Thayer  v.  Lane 
Walk.  Ch.  202 ;  a  debt  by  a  citizen  of  one  state  to  a  person  domi- 
ciled in  another  is  an  asset  in  the  former:  McCarty  v.  Hall  13  Mo. 
480;  Thompson  v.  Wilson  2  N.  H.  291 ;  Sabin,  Adm'r  v.  Gilman 
1  N.  H.  193 ;  Young  v.  O'Neal  3  Sneed  55 ;  Taylor  v.  Barron  35 
N.  H.  494;  Vaughn  v.  Barret  5  Vt.  333-7;  Bullock  v.  Rogers  21 
Vt.  294;  Abbott  v.  Coburn  28  Vt.  663;  Willard  v.  Hammond  21 
N.  H.  385;  Chapman,  Adm'r  v.  Fish  6  Hill  554;  Stone  v.  Scrip- 
ture 4  Lans.  186;  Slocum  v.  Sanford  2  Conn.  533;  Holcomb  v. 
Phelps  16  Conn.  127,  135;  Upton  v.  Hubbard  28  Conn.  274,  286; 
Vaughn  v.  Northrop  15  Pet.  1 ;  Noonan  v.  Bradley  9  Wall.  405 ; 
Kohler  v.  Knapp  1  Bradf.  Sur.  241 ;  Orcutt  v.  Orms  3  Paige  465  ; 
Owen  v.  Miller  10  Ohio  St.  136;  Story's  Confl.  Laws  §§  514,  411, 
529;  Wyman  v.  United  States  29  Alb.  Law  Jour.  194;  assets  ar; 
not  to  be  transmitted  from  one  state  to  another,  so  long  as  there 
are  creditors  unpaid  in  the  former:  Story's  Confl.  Laws  (7th  ed.) 
§  513;  Richards  v.  Dutch  8  Mass.  506;  Stevens  v.  Gaylord  i[ 
Mass.  256;  there  is  no  privity  between  different  administrations 
in  different  states,  but  each  is  sovereign  within  its  own  limits  and 
none  have  any  authority  beyond  the  state  where  appointed :  Asp- 
den  v.  Nixon  4  How.  467 ;  Stacy  v.  Thrasher  6  How.  44 ;  Mackey 
v.  Coxe  18  How.  100. 

Spaulding  &  Barker  for  appellants.  The  place  where  a  per- 
son lives  and  dies  is  taken  to  be  his  domicile  until  facts  adduced 
establish  the  contrary:  In  re  Olson  63  la.  145;  where  the  St. 
Louis  probate  court    has  jurisdiction  of  the  estates    of  deceased 


ADMINISTRATION.  301 

persons,  its  orders  and  judgments  are  valid  till  reversed  and  they 
are  not  subject  to  review  collaterally :  Hozvard  v.  Moore  2  Mich. 
233;  Palmer  v.  Oakley  2  Doug.  (Mich.)  475;  Osman  v.  Trap- 
hagen  23  Mich.  88 ;  Cook  v.  Stevenson  30  Mich.  245 ;  Schnell  v. 
Chicago  38  111.  382;  Unknown  heirs  v.  Baker,  Adm'r  23  111.  435; 
Hobson  v.  Ewan  62  111.  149;  Brackett  v.  Brackett  61  Mo.  221; 
the  error  or  irregularity  of  proceedings  before  the  surrogate  can- 
not be  shown  in  a  collateral  action,  but  must  be  corrected  on  ap- 
peal: Jackson  v.  Robinson  4  Wend.  436;  debts  due  on  simple  con- 
tract are  considered  as  goods  situated  where  the  intestate  dies : 
Parsons  v.  Lyman  20  N.  Y.  112;  Story  on  Confl.  Laws  §§  376- 
383 ;  Eells  v.  Holder  2  McCrary  622 ;  a  purchaser  from  a  public 
administrator  is  not  bound  to  see  that  the  sale  is  proper;  Suther- 
land v.  Brush  7  Johns.  Ch.  17;  he  is  protected  whether  the  pro- 
bate court  did  or  did  not  properly  exercise  its  jurisdiction:  Wight 
v.  Wallbaum  39  111.  565 ;  Hobson  v.  Ewan  62  111.  155 ;  McNamara 
v.  McNamara  62  Ga.  200. 

Cooley,  C.  J.  Some  time  in  the  year  1872  Warren  A.  Sher- 
wood, who  had  previously  been  a  citizen  of  Michigan,  went  to 
St.  Louis,  Mo.,  where  he  engaged  in  business.  He  was  a  bache- 
lor, and  took  board  at  a  hotel,  and  on  March  27,  1876,  died  at  the 
hotel  intestate.  He  left  a  number  of  heirs  at  law,  one  of  whom 
resided  in  New  York,  one  in  Minnesota,  and  all  the  others  in 
Michigan.  He  left  some  land  in  Michigan  and  some  debts,  and 
he  was  owner  at  the  time  of  his  death  of  demands  to  the  amount 
of  upwards  of  $50,000  which  were  secured  by  mortgages  on  lands 
in  Michigan.  Among  the  mortgages  was  one  given  to  secure  a 
note  made  October  8,  1874,  by  William  and  Mary  Lusk,  for  $1125 
and  interest,  payable  at  St.  Louis,  Mo.,  or  at  such  other  place  as 
Sherwood,  to  whom  it  was  given,  should  elect  in  five  years  from 
date. 

On  the  death  of  Sherwood  Matrom  D.  Lewis  claiming  to  act 
a?  public  administrator  for  the  city  and  county  of  St.  Louis,  took 
immediate  possession  of  his  personal  assets,  and  claimed  a  right 
to  administer  upon  them.  The  relatives  of  Sherwood  were  not 
present  at  the  time,  but  the  residence  of  those  in  Michigan  was 
known,  and  Lewis  immediately  communicated  with  them  by  tele- 


302  PRIVATE   INTERNATIONAL   LAW. 

graph,  and  sent  the  body  to  them  in  compliance  with  their  re- 
quest. The  relatives  at  once  proceeded  to  have  letters  of  admin- 
istration taken  out  in  Michigan,  and  Albert  G.  Russell,  a  brother- 
in-law  of  the  deceased,  was  appointed  administrator  by  the  pro- 
bate court  for  the  county  of  Ionia  on  May  29,  1876,  and  duly 
qualified  as  such.  After  his  appointment  and  qualification  Rus- 
sell called  upon  Lewis  for  the  property  belonging  to  the  estate, 
but  Lewis  refused  to  surrender  it,  and  persisted  in  his  claim  of 
the  right  to  administer  himself.  In  June,  1878,  Lewis  made  pub- 
lic sale  of  the  securities  belonging  to  the  estate,  and  they  were 
sold  for  the  most  part  for  merely  nominal  sums.  The  Lusk  note 
and  mortgage,  which  were  perfectly  good  securities,  sold  better 
than  most  of  the  others,  and  were  bid  off  by  one  Flanagan  for 
eighty  dollars.  The  purchasers  were  notified  before  the  sale  was 
made  that  the  right  of  Lewis  to  sell  was  disputed,  and  that  Russell 
as  administrator  claimed  the  securities.  Flanagan  subsequently 
gave  an  assignment  of  the  mortgage  to  one  Barr,  and  Barr  exe- 
cuted a  discharge  of  it  on  receiving  six  hundred  dollars  or  about 
one-half  the  amount  due.  The  defendant  McMullen  has  since 
become  purchaser  of  the  land,  and  claims  to  hold  and  own  it  dis- 
charged of  the  mortgage.  Russell,  the  Michigan  administrator, 
continued  to  act  as  such  until  September,  1878,  when  he  died,  and 
complainant  was  appointed  and  qualified  as  his  successor.  The 
present  suit  was  then  instituted,  the  purpose  of  which  is  to  fore- 
close the  Lusk  mortgage.  The  defendants  rely  upon  the  pro- 
ceedings by  Lewis,  the  sale  to  Flanagan,  and  the  subsequent  as- 
signment to  and  discharge  by  Barr.  Decree  was  rendered  in  the 
court  below  in  favor  of  complainant,  and  defendants  appeal. 

It  is  disputed  by  complainant  that  Sherwood  at  the  time  of 
his  decease  was  domiciled  in  St.  Louis,  but  on  the  evidence  we  are 
inclined  to  think  that  city  must  be  deemed  to  have  been  his  domi- 
cile, and  we  shall  so  assume  throughout  this  opinion.  The  ques- 
tions of  importance  in  the  case  will  then  be:  First,  whether 
Lewis,  as  public  administrator,  had  authority  of  law  to  take  upon 
himself  administration  of  Sherwood's  estate ;  and  if  so,  then  sec- 
ond, whether  under  the  circumstances  he  had  power  as  such  ad- 
ministrator to  sell  and  assign  the  mortgage  in  suit.     If  either  of 


ADMINISTRATION.  303 

these  questions  is  answered  in  the  negative,  it  will  be  fatal  to  the 
defense. 

The  office  of  public  administrator  is  statutory  in  Missouri, 
and  the  statute  contemplates  action  by  him  in  the  settlement  of 
estates  only  in  a  few  exceptional  cases  which  are  particularly 
specified.  The  statutory  provision  which  was  in  force  at  the  time 
of  Sherwood's  death  was  the  following : 

"It  shall  be  the  duty  of  the  public  administrator  to  take  into 
his  charge  and  custody  the  estates  of  all  deceased  persons  in  his 
county  in  the  following  instances : 

i.  \v  nen  a  stranger  dies  intestate  in  the  county,  without  rela- 
tives, or  dies  leaving  a  will  and  the  executor  named  is  absent  or 
fails  to  qualify. 

2.  When  persons  die  intestate  without  any  known  heirs. 

3.  When  persons  unknown  die  or  are  found  dead  in  the 
county. 

4.  When  money,  property,  papers  or  other  estate  are  left  in 
a  situation  exposed  to  loss  or  damage,  and  no  other  person  admin- 
isters on  the  same. 

5.  When  any  estate  of  any  person  who  dies  intestate  therein, 
or  elsewhere,  is  left  in  the  county,  liable  to  be  injured,  wasted  or 
lost,  when  said  intestate  does  not  leave  a  known  husband,  widow 
or  heir  in  this  state. 

6.  When  from  any  good  cause  said  court  shall  order  him  to 
take  possession  of  any  estate  to  prevent  its  being  injured,  wasted, 
purloined  or  lost."     Wagner's  Stat.  1868,  (ed.  1872)  p.  122,  §  8. 

Unless  the  case  was  such  as  to  fall  within  one  of  these  six 
classes,  it  is  not  pretended  that  Lewis  had  any  right  to  inter- 
meddle as  public  administrator. 

That  Sherwood  was  not  a  stranger  in  St.  Louis  is  conceded. 
He  was  well  known  there,  and  his  name  appeared  in  the  directory 
as  a  business  man  of  the  city.  His  case  did  not  therefore  come 
within  the  first  subdivision  of  the  section  above  recited,  or  within 
the  third. 

Sherwood  did  not  die  without  known  heirs.  His  heirs  were 
well  known,  and  Lewis  himself  communicated  with  them  imme- 


304  PRIVATE  INTERNATIONAL  LAW. 

diately.     The  case  was  therefore  not  within  the  second  subdivi- 
sion above  recited. 

If  Lewis  was  justified  in  interfering  at  all,  it  must  have  been 
under  the  fourth  or  fifth  subdivisions  of  the  section,  and  for  the 
protection  of  the  estate.  But  the  fourth  could  not  justify  him  be- 
cause the  relatives  of  Sherwood  immediately  offered  to  take 
charge  of  the  estate,  and  would  have  done  so  but  for  his  interfer- 
ence. They  did  in  fact  as  soon  as  was  practicable  take  out  letters 
of  administration  in  Michigan  where  they  were  particularly  need- 
ed, and  would  no  doubt  have  done  the  same  in  Missouri  had  it 
become  necessary.  If  they  had  failed  to  do  so,  any  creditor  in 
Missouri  whose  claim  was  not  provided  for  might  have  taken  out 
letters  on  his  own  behalf.  No  showing  is  made  in  the  case  that 
for  any  purpose  of  protecting  the  estate  it  was  necessary  or  impor- 
tant that  the  public  administrator  should  interfere,  and  his  seiz- 
ure of  the  effects  and  papers  of  the  deceased  ani  the  subsequent 
sale  of  the  assets  for  a  trilling  percentage  of  their  value  consti- 
tuted a  wholly  unnecessary  and  reckless  intermeddling  with  pri- 
vate rights  which  the  statute  of  Missouri  never  intended  to  au- 
thorize, and  which  the  enlightened  tribunals  of  that  state  must 
have  yisited  with  condemnation  had  their  action  been  invoked  to 
authorize  or  sanction  what  was  done.  If  the  public  administrator 
could  lawfully  administer  in  defiance  of  the  wishes  of  the  family, 
he  must  have  had  the  right  in  any  case  in  which  he  could  reach 
the  bed  of  death  and  seize  the  personal  effects  before  the  family 
could  anticipate  him. 

We  keep  in  mind  the  fact,  in  what  we  say  in  this  connection, 
that  Lewis  was  acting  on  his  own  motion  and  without  the  pre- 
vious authorization  of  any  court.  Had  the  proper  probate  court 
of  Missouri,  on  being  applied  to,  granted  letters  of  administration 
on  the  estate  of  a  person  who  had  died  when  domiciled  within  the 
jurisdiction,  a  collateral  attack  upon  its  proceedings  could  not  be 
countenanced.  But  this  public  officer  acted  without  letters  and 
was  his  own  judge  of  the  right  to  do  so.  Those  who  claim  under 
an  administration  which  is  not  judicially  ordered  are  entitled  to 
no  presumptions  in  support  of  its  authority.  Illinois  Cent.  R. 
R.  Co.  v.  Cragin  71   111.  177.     In  this  case  the  failure  to  show 


ADMINISTRATION.  305 

jurisdiction  is  complete.  There  could  not  well  be  a  more  unnec- 
essary, wanton  and  injurious  interference  with  the  rights  of  oth- 
ers than  this  record  discloses.  But  we  do  not  place  our  judgment 
in  this  case  exclusively  upon  this  ground,  because  we  think  if 
Lewis  as  public  administrator  had  authority  to  act,  he  had  none 
under  the  facts  disclosed  to  make  sale  of  the  mortgage. 

We  concede  to  the  fullest  extent  the  general  principle  relied 
upon  by  defendants,  that  personal  property,  in  contemplation  of 
law  accompanies  the  person  of  the  owner,  and  that  its  disposition 
on  his  death  is  to  be  determined  by  the  laws  of  his  domicile.  But 
while  the  rule  of  distribution  is  thus  determined,  the  steps  to 
reach  it  may  be  otherwise  prescribed ;  and  when  the  property  is 
in  one  jurisdiction  and  the  domicile  in  another,  the  necessity  for 
distinct  proceedings  in  administration  may  be  imperative.  The 
proceedings  when  taken  in  this  class  of  cases  are  governed  and 
regulated  by  certain  rules  of  'inter-state  comity,  which  are  thus 
stated  by  the  court  of  appeals  of  New  York :  "It  is  an  established 
doctrine,  not  only  of  international  law  but  of  the  municipal  law 
of  this  country,  that  personal  property  has  no  locality.  It  is  sub- 
ject to  the  law  which  governs  the  person  of  the  owner,  as  well 
in  respect  to  the  disposition  of  it  by  act  inter  vivos,  as  to  its  trans- 
mission by  last  will  and  testament,  and  by  succession  upon  the 
owner  dying  intestate.  The  principle,  no  doubt,  has  its  founda- 
tion in  international  comity ;  but  it  is  equally  obligatory,  as  a  rule 
of  decision  in  the  courts,  as  a  legal  rule  of  purely  domestic  origin. 
It  does  not  belong  to  the  judges  to  recognize  or  to  deny  the  rights 
which  individuals  may  claim  under  it,  at  their  pleasure  or  caprice ; 
but,  it  having  obtained  the  force  of  law  by  user  and  acquiescence, 
it  belongs  only  to  the  political  government  of  the  state  to  change 
it  whenever  a  change  becomes  desirable.  But  the  right  which  an 
individual  may  claim  to  personal  property  in  one  country,  under 
title  from  a  person  domiciled  in  another,  can  only  be  asserted  by 
the  legal  instrumentalities  which  the  institutions  of  the  country 
where  the  claim  is  made  have  provided.  The  foreign  law  fur- 
nishes the  rule  of  decision  as  to  the  validity  of  the  title  to  the  thing 
claimed ;  but  in  respect  to  the  legal  assertion  of  that  title  it  has  no 
extra  territorial  force.     As  a  result  of  this  doctrine  it  is  now  gen- 


306  PRIVATE   INTERNATIONAL   LAW. 

erally  held  everywhere,  and  it  is  well  settled  in  this  state,  that  an 
executor  or  administrator  appointed  in  another  state  has  not,  as 
such,  any  authority  beyond  the  sovereignty  by  virtue  of  whose 
laws  he  was  appointed."  Denio,  J.  in  Parsons  v.  Lyman  2.0  N. 
Y.  103,  112;  citing  Morrell  v.  Dickey  1  Johns.  Ch.  153;  Vroom 
v.  Van  Home  10  Paige  549. 

The  same  general  doctrine  is  also  concisely  stated  in  a  case 
in  the  Federal  Supreme  Court:  "Every  grant  of  administration 
is  strictly  confined  in  its  authority  and  operation  to  the  limits  01 
the  territory  of  the  government  which  grants  it ;  and  does  not,  de 
jure,  extend  to  other  countries.  It  cannot  confer,  as  a  matter  of 
right,  any  authority  to  collect  assets  of  the  deceased  in  any  other 
state ;  and  whatever  operation  is  allowed  to  it  beyond  the  original 
territory  of  the  grant  is  a  mere  matter  of  comity,  which  every  na- 
tion is  at  liberty  to  yield  or  to  withhold,  according  to  its  own  pol- 
icy and  pleasure,  with  reference  to  its  own  institutions  and  the 
intertsts  of  its  own  citizens."  Story,  J.  in  Vaughn  v.  Northrup 
15  Pet.  1,  5. 

Lewis,  then,  if  legally  administrator  in  Missouri,  had  no  offi- 
cial authority  in  this  State  except  such  as  by  comity  would  be  rec- 
ognized ;  and  the  rules  of  comity  might  be  determined  either  by 
usage,  of  which  the  judicial  decisions  would  be  evidence,  or  by 
statute.  Some  of  these  rules  are  general  and  are  well  settled. 
There  are  cases,  for  example,  where  it  has  been  held  that  a  for- 
eign administrator  has  a  right  to  collect  and  take  possession  of 
personal  property,  and  remove  it  for  the  purposes  of  administra- 
tion :  "Doolittle  v.  Lewis  7  Johns.  Ch.  45 ;  Brown  v.  Brown  1 
Barb.  Ch.  189;  Vroom  v.  Van  Home  10  Paige  549;  s.  c.  42  Am. 
Dec.  94 ;  Riley  v.  Riley  3  Day  74 ;  s.  c.  3  Am.  Dec.  262 ;  Smith  v. 
Guild  34  Me.  443;  Rand  v.  Hubbard  4  Mete.  252;  Marcy  v. 
Marcy  32  Conn.  308;  and  where  there  are  no  domestic  creditors 
or  other  claimants,  there  will  be  no  occasion  to  question  such 
cases.  There  may  also  be  cases  of  payments  to  a  foreign  admin- 
istrator which  may  be  recognized,  there  being  no  conflicting  ad- 
ministration. Williams  v.  Storrs  6  Johns.  Ch.  353;  Trecothick 
v.  Austin  4  Mas.  16,  33 ;  Wilkins  v.  Ellett  q  Wall.  740 ;  Vroom 
v.  Van  Home  supra;  Citizens'  Bank  v.  Sharp  53  Md.  521.     And 


ADMINISTRATION.  307 

where  an  administrator,  in  the  forum  of  his  appointment,  has  as- 
signed demands  bona  notabilia  there,  it  may  be  correct  to  hold 
that  his  assignee  may  sue  thereon  here  in  his  own  name,  as  was 
held  in  Harper  v.  Butler  2  Pet.  239,  and  Peterson  v.  Chemical 
Bank  32  X.  Y.  21,  and  cases  there  cited;  as  to  which  see  Knapp 
v.  Lee  42  Mich.  41. 

But  this  case  involves  the  validity  of  the  assignment  of  a  debt 
secured  by  a  real-estate  mortgage  on  lands  in  this  state.  It  was 
decided  in  Cutter  v.  Davenport  1  Pick.  81,  that  the  foreign  ad- 
ministrator had  no  authority  to  make  such  an  assignment;  and 
this  is  followed  in  the  recent  case  of  Dial  v.  Gary  14  S.  C.  573 : 
s.  c.  37  Am.  Rep.  737.  Whether  these  decisions  would  be  fol- 
lowed in  this  State  if  there  were  no  statute  bearing  upon  the  ques- 
tion, we  do  not  care  to  inquire,  because  we  think  if  the  power  to 
assign  would  exist  independent  of  statute  it  does  not  exist  under 
the  statutes  now  in  force. 

The  statutes  provide  for  recognizing  the  authority  of  a  for- 
eign administrator  when  it  becomes  necessary  to  make  sale  of 
lands  in  this  State,  and  prescribes  the  steps  to  be  taken  for  that 
purpose.  How  Stat.  §§  6057-6061.  If  administration  is  needed 
in  this  State  for  other  purposes,  new  letters  must  be  taken  out ; 
and  an  administration  ancillary  to  one  in  another  state  would  pro- 
ceed like  any  other  up  to  the  time  of  accounting.  And  for  the 
purpose  of  selling  lands,  it  seems  very  clear  that  a  public  adminis- 
trator could  not  be  recognized  in  this  State  at  all ;  for  the  statute 
contemplates  the  case  of  an  administrator  "appointed"  in  some 
other  state  or  country,  who  shall  produce  and  file  in  the  proper 
court  "an  authenticated  copy  of  his  appointment/  Section  6057. 
A  public  administrator  having  no  appointment  for  the  special 
case  would  not  be  within  the  terms  of  this  statute. 

But  we  may  pass  by  without  further  remark  any  question  of 
what  Lewis  might  or  might  not  have  done  had  he  undertaken  to 
proceed  in  this  State  under  its  statutes.  What  he  did  in  fact  was 
to  proceed  without  regard  to  the  statutes  and  in  contempt  of  au- 
thority which  was  being  taken,  in  regular  form  at  least,  under 
them.     And  unless  under  such  circumstances  he  had  authority  to 


308  PRIVATE    INTERNATIONAL   LAW. 

sell  and  dispose  of  the  mortgage  in  suit,  it  must  have  remained 
the  property  of  the  estate. 

Now  a  mortgage  of  lands  is  in  this  State  a  conveyance  with- 
in the  meaning  of  the  recording  laws,  and  goes  upon  record  as 
such.  How.  Stat.  §  5689.  It  becomes  necessary  to  record  it, 
therefore,  to  prevent  its  being  cut  off  by  subsequent  conveyances. 
Id.  §  5683.  It  is  not  allowed  to  be  foreclosed  under  the  power  of 
sale  until  the  mortgage  and  any  assignment  thereof  are  duly  re- 
corded. Id.  §  8498.  And  no  one  could  make  a  valid  assignment 
of  a  mortgage  which  would  be  sufficient  for  the  purposes  either  of 
foreclosure  or  of  record,  unless  his  own  authority  was  of  record 
so  that  the  title  made  under  a  foreclosure  would  appear  by  the 
record  to  be  complete.  It  follows  that  a  foreign  administrator 
could  make  no  assignment  of  a  mortgage  in  this  State ;  and  this 
is  so  well  understood  that  it  is  not  uncommon  in  this  State  to  have 
ancillary  letters  taken  out  here  for  no  other  purpose  than  to  assign 
mortgage  securities.  The  case  of  Doolittle  v.  Lezvis  7  Johns.  Ch. 
45,  in  so  far  as  it  recognizes  the  right  of  a  foreign  administrator 
to  foreclose  under  the  power  of  sale,  would  be  inapplicable  in  this 
State  by  reason  of  the  statutory  provisions  referred  to. 

But  a  foreign  administrator  would  be  equally  powerless  to 
discharge  a  mortgage.  The  discharge  is  for  the  purpose  of  re- 
lieving the  record  of  the  apparent  mortgage  lien,  and  this  would 
not  be  accomplished  unless  the  authority  of  the  party  assuming 
to  discharge  was  itself  of  record.  The  statute  imposes  a  penalty 
on  the  mortgagee,  his  personal  representative  or  assignee  who, 
when  payment  of  the  mortgage  debt  has  been  made,  neglects  or 
refuses,  after  demand,  to  discharge  the  mortgage.  How.  Stat.  § 
5704.  But  a  foreign  administrator  who  would  be  powerless  to 
give  a  legal  discharge  could  not  be  within  the  provisions  of  this 
section.  Lewis  therefore  was  assuming  to  sell  a  mortgage  which 
he  was  without  authority  either  to  enforce  or  discharge. 

But  a  perfectly  conclusive  objection  to  the  validity  of  the  sale 
of  the  mortgage  made  by  Lewis  is  seen  in  the  fact  that  there  was 
at  the  very  time  an  administration  in  this  State.  There  is  no 
ground  for  even  a  suggestion  that  that  administration  was  invalid. 
The  intestate  left  both  property  and  debts  in  this  State,  and  the 


ADMINISTRATION.  309 

jurisdiction  of  the  court  which  made  the  Michigan  appointment 
was  unquestionable.  Administration  in  Michigan  indeed,  if  the 
estate  was  to  be  preserved  from  such  ruthless  destruction  as  Lewis 
undertook  to  visit  it  with,  was  a  necessity ;  and  if  he  had  had  any- 
proper  sense  of  his  office  and  a  due  regard  to  the  rights  of  parties 
concerned,  he  would  have  recognized  the  Michigan  administra- 
tion, and  have  sought  to  act  in  harmony  with  it.  Conflict  was 
for  any  proper  legal  purpose  wholly  unnecessary. 

Xo  case  has  been  called  to  our  attention  in  which  it  has  been 
held  that  after  letters  issued  in  one  state  or  country  a  foreign  ad- 
ministrator can  be  recognized  there  even  for  the  purposes  of  a 
voluntary  payment;  and  the  cases  like  Vaughn  v.  Barret  5  Vt. 
333;  Young  v.  O'Neal  3  Sneed  55  and  Ferguson  v.  Morris  67 
Ala.  389,  which  deny  the  validity  of  such  a  payment  generally,  if 
questionable  when  no  domestic  appointment  exists,  are  perfectly 
sound  and  reasonable  if  there  is  at  the  time  a  valid  administration 
in  the  state.  See  Noonan  v.  Bradley  9  Wall.  304.  405.  It  is  the 
duty  of  citizens  of  the  state  to  recognize  and  defer  to  the  judicial 
determination  of  its  own  tribunals,  as  much  when  they  concern 
matters  of  administration  as  in  other  cases :  Henderson  v.  Clarke 
4  Litt.  2jj ;  Glenn  v.  Smith  2  Gill.  &  J.  493  ;  20  Am.  Dec.  452  ;  and 
this  is  especially  true  in  a  case  like  the  present  where  nothing  ex- 
isted to  bring  in  question  the  judicial  determination  of  the  Michi- 
gan court,  except  the  bare  assertion  of  his  own  authority  by  the 
foreign  official.  By  the  law  of  this  State  the  title  to  this  demand 
for  all  purposes  of  administration  was  in  the  Michigan  adminis- 
trator, who  might  put  it  in  suit  when  due  or  assign  it  of  record 
or  discharge  it  of  record.  He  was  therefore  the  only  person  who 
could  be  safely  dealt  with  in  respect  to  it.  The  claim  by  the  for- 
eign official  was  inconsistent  with  these  undoubted  rights  and  was 
negatived  by  them. 

The  decree  must  be  affirmed. 

Campbell,  J.,  concurred. 


310  PRIVATE    INTERNATIONAL   LAW. 

JUDGMENTS. 
HILTON  v.  GUYOT,  159  U.  S.  113,  (1895). 

The  first  of  these  two  cases  was  an  action  at  law,  brought 
December  18,  1885,  in  the  Circuit  Court  of  the  United  States  for 
the  Southern  District  of  New  York,  by  Gustave  Bertin  Guyot, 
as  official  liquidator  of  the  firm  of  Charles  Fortin  &  Co.,  and  by 
the  surviving  members  of  that  firm,  all  aliens  and  citizens  of  the 
Republic  of  France,  against  Henry  Hilton  and  William  Libbey, 
citizens  of  the  United  States  and  of  the  State  of  New  York,  and 
trading  as  copartners,  in  the  cities  of  New  York  and  Paris  and 
elsewhere,  under  the  firm  name  of  A.  T.  Stewart  &  Co.  The  ac- 
tion was  upon  a  judgment  recovered  in  a  French  court  at  Paris 
in  the  Repuplic  of  France  by  the  firm  of  Charles  Fortin  &  Co.,  all 
whose  members  were  French  citizens,  against  Hilton  and  Libbey, 
trading  as  copartners  as  aforesaid,  and  citizens  of  the  United 
States  and  of  the  State  of  New  York. 

The  complaint  alleged  that  the  judgment  of  the  French  court 
remains  in  full  force  and  effect;  that  the  French  court  had  juris- 
diction of  the  subject  matter,  and  of  the  parties ;  that  the  plain- 
tiffs have  been  unable  to  collect  the  said  judgment  or  any  part 
thereof,  by  reason  of  the  absence  of  the  said  defendants,  they  hav- 
ing given  up  their  business  in  Paris  prior  to  the  recovery  of  the 
said  judgment  on  appeal,  and  having  left  no  property  within  the 
jurisdiction  of  the  Republic  of  France,  out  of  which  the  said  judg- 
ment might  be  made;  and  that  there  is  still  justly  due  and  owing 
from  the  defendants  to  the  plaintiffs  the  sum  of  $195,122.47. 

The  defendants  in  their  answer  alleged  that  the  plaintiffs  had 
no  just  claim  against  the  defendants;  that  the  defendants  were 
not  present  at  Paris  at  the  time  of  the  suit;  and  that  the  defen- 
dants appeared  by  attorney  solely  for  the  purpose  of  protecting 
their  property  which  was  within  the  jurisdiction  of  the  French 
court.  The  answer  further  alleged  that  there  was  not  a  full  and 
fair  trial  in  the  lower  French  court,  and  consequently  the  judg- 
ment is  void. 

The  answer  further  alleged  that  it  would  be  against  natural 
justice  to  enforce  this  judgment  without  an  examination  of  the 


JUDGMENTS.  311 

merits  thereof.  The  defendants  claim  also,  that  judgments  ren- 
dered in  the  United  States  may  be  examined  anew  in  the  French 
courts,  that  our  judgments  are  not  conclusive  in  France. 

The  plaintiffs  filed  a  replication  to  the  answer  denying  its 
allegations,  and  setting  up  in  bar  thereof  the  judgment  sued  on. 

The  circuit  court  directed  a  verdict  for  the  plaintiffs  in  the 
sum  of  $277,775.44,  being  the  amount  of  the  French  judgment 
and  interest.  The  defendants,  having  duly  excepted  to  the  rul- 
ings and  direction  of  the  court,  sued  out  a  writ  of  error. 

The  writ  of  error  in  the  action  at  law  and  the  appeal  in  the 
suit  in  equity  were  argued  together  in  this  court  January  19,  22, 
and  23,  1894;  and,  by  direction  of  the  court,  were  reargued  in 
April,  1894,  before  a  full  bench. 

Mr.  James  C.  Carter  and  Mr.  Elihu  Root  for  plaintiffs  in 
error  and  appellants.     Mr.  Horace  Russell  was  on  their  briefs. 

Mr.  William  G.  Choate,  (with  whom  was  Mr.  William  D. 
Shipman  on  the  brief,)  for  defendants  in  error  and  appellees. 

Mr.  Justice  Gray,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

These  two  cases,  the  one  at  law  and  the  other  in  equity,  of 
Hilton  v.  Gnyot,  and  the  case  of  Ritchie  v.  McMullen  which  has 
been  under  advisement  at  the  same  time,  present  important  ques- 
tions relating  to  the  force  and  effect  of  foreign  judgments,  not 
hitherto  adjudicated  by  this  court,  which  have  been  argued  with 
great  learning  and  ability,  and  which  require  for  their  satisfactory 
determination  a  full  consideration  of  the  authorities.  To  avoid 
confusion  in  indicating  the  parties,  it  will  be  convenient  first  to 
take  the  case  at  law  of  Hilton  v.  Gnyot. 

International  law,  in  its  widest  and  most  comprehensive  sense 
— including  not  only  questions  of  right  between  nations,  governed 
by  what  has  been  appropriately  called  the  law  of  nations ;  but  also 
questions  arising  under  what  is  usually  called  private  international 
law,  or  the  conflict  of  laws,  and  concerning  the  rights  of  persons 
within  the  territory  and  dominion  of  one  nation,  by  reason  of  acts, 
private  or  public,  done  within  the  dominions  of  another  nation — is 
part  of  our  law,  and  must  be  ascertained  and  administered  by  the 
courts  of  justice,  as  often  as  such  questions  are  presented  in  liti- 


312  PRIVATE   INTERNATIONAL  LAW. 

gation  between  man  and  man,  duly  submitted  to  their  determina- 
tion. 

The  most  certain  guide,  no  doubt,  for  the  decision  of  such 
questions  is  a  treaty  or  a  statute  of  this  country.  But  when, 
as  is  the  case  here,  there  is  no  written  law  upon  the  subject, 
the  duty  still  rests  upon  the  judicial  tribunals  of  ascertaining  and 
declaring  what  the  law  is,  whenever  it  becomes  necessary  to  do 
so,  in  order  to  determine  the  rights  of  parties  to  suits  regularly 
brought  before  them.  In  doing  this,  the  courts  must  obtain  such 
aid  as  they  can  from  judicial  decisions,  from  the  works  of  jurists 
and  commentators,  and  from  the  acts  and  usages  of  civilized  na- 
tions. Fremont  v.  United  States,  iy  How.  542,  557;  The  Scotia, 
14  Wall.  170,  188;  Respublica  v.  De  Longchamps,  1  Dall.  in, 
116;  Moultrie  v.  Hunt,  23  N.  Y.  394,  396. 

No  law  has  any  effect,  of  its  own  force,  beycnd  the  limits  of 
the  sovereignty  from  which  its  authority  is  derived.  The  extent 
to  which  the  law  of  one  nation,  as  put  in  force  within  its  territory, 
whether  by  executive  order,  by  legislative  act,  or  by  judicial  de- 
cree, shall  be  allowed  to  operate  within  the  dominion  of  another 
nation,  depends  upon  what  our  greatest  jurists  have  been  content 
to  call  "the  comity  of  nations."  Although  the  phrase  has  been 
often  criticised,  no  satisfactory  substitute  has  been  suggested. 

"Comity,"  in  the  legal  sense,  is  neither  a  matter  of  absolute 
obligation,  on  the  one  hand,  nor  of  mere  courtesy  and  good  will, 
upon  the  other.  But  it  is  the  recognition  which  one  nation  al- 
lows within  its  territory  to  the  legislative,  executive  or  judicial 
acts  of  another  nation,  having  due  regard  both  to  international 
duty  and  convenience,  and  to  the  rights  of  its  own  citizens  or  of 
other  persons  who  are  under  the  protection  of  its  laws. 

Mr.  Justice  Story,  in  his  Commentaries  on  the  Conflict  of 
Laws,  treating  of  the  question  in  what  department  of  the  govern- 
ment of  any  State,  in  the  absence  of  any  clear  declaration  of  the 
sovereign  will,  resides  the  authority  to  determine  how  far  the 
laws  of  a  foreign  State  shall  have  effect,  and  observing  that  this 
differs  in  different  States,  according  to  the  organization  of  the 
departments  of  the  government  of  each,  says :  "In  England  and 
America,  the  courts  of  justice  have  hitherto  exercised  the  same 


JUDGMENTS.  313 

authority  in  the  most  ample  manner :  and  the  legislatures  have  in 
no  instance  (it  is  believed)  in  either  country  interfered  to  pro- 
vide any  positive  regulations.  The  common  law  of  both  coun- 
tries has  been  expanded  to  meet  the  exigencies  of  the  times  as 
they  have  arisen ;  and  so  far  as  the  practice  of  nations,  or  the  jus 
gentium  privatum,  has  been  supposed  to  furnish  any  general  prin- 
ciple, it  has  been  followed  out."  Story's  Conflict  of  Laws,  §§ 
23,  24. 

Afterwards,  speaking  of  the  difficulty  of  applying  the  posi- 
tive rules  laid  down  by  the  Continental  jurists,  he  says  that  "there 
is  indeed  great  truth"  in  these  remarks  of  Mr.  Justice  Porter, 
speaking  for  the  Supreme  Court  of  Louisiana:  "They  have  at- 
tempted to  go  too  far,  to  define  and  fix  that  which  cannot,  in  the 
nature  of  things,  be  defined  and  fixed.  They  seem  to  have  for- 
gotten that  they  wrote  on  a  question  which  touched  the  comity 
of  nations,  and  that  that  comity  is,  and  ever  must  be,  uncertain ; 
that  it  must  necessarily  depend  on  a  variety  of  circumstances 
which  cannot  be  reduced  to  any  certain  rule;  that  no  nation  will 
suffer  the  laws  of  another  to  interfere  with  her  own  to  the  injury 
of  her  citizens ;  that  whether  they  do  or  not  must  depend  on  the 
condition  of  the  country  in  which  the  foreign  law  is  sought  to  be 
enforced,  the  particular  nature  of  her  legislation,  her  policy,  and 
the  character  of  her  institutions;  that  in  the  conflict  of  laws  it 
must  often  be  a  matter  of  doubt  which  should  prevail ;  and  that, 
whenever  a  doubt  does  exist,  the  court,  which  decides,  will  prefer 
the  laws  of  its  own  country  to  that  of  the  stranger."  Story's  Con- 
flict of  Laws,  §  28;  Saul  v.  His  Creditors,  (1827)  5  Martin  (N. 

s.)  569, 59°. 

Again  :  Mr.  Justice  Story  says :  "It  has  been  thought  by 
some  jurists  that  the  term  comity  is  not  sufficiently  expressive  of 
the  obligation  of  nations  to  give  effect  to  foreign  laws  when  they 
are  not  prejudicial  to  their  own  rights  and  interests.  And  it  has 
been  suggested  that  the  doctrine  rests  on  a  deeper  foundation; 
that  it  is  not  so  much  a  matter  of  comity  or  courtesy,  as  a  matter 
of  paramount  moral  duty.  Now,  assuming  that  such  a  moral 
duty  does  exist,  it  is  clearly  one  of  imperfect  obligation,  like  that 
of  beneficence,  humanity  and   charity.     Every  nation  must  be  the 


314  PRIVATE    INTERNATIONAL    LAW. 

final  judge  for  itself,  not  only  of  the  nature  and  extent  of  the 
duty,  but  of  the  occasions  on  which  its  exercise  may  be  justly  de- 
manded." And,  after  further  discussion  of  the  matter,  he  con- 
cludes :  ''There  is  then  not  only  no  impropriety  in  the  use  of  the 
phrase  'comity  of  nations,'  but  it  is  the  most  appropriate  phrase 
to  express  the  true  foundation  and  extent  of  the  obligation  of  the 
laws  of  one  nation  within  the  territories  of  another/'  Story's 
Conflict  of  Laws,  §§  33-38. 

Chief  Justice  Taney,  likewise,  speaking  for  this  court  while 
Mr.  Justice  Story  was  a  member  of  it,  and  largely  adopting  his 
words,  said:  "It  is  needless  to  enumerate  here  the  instances  in 
which,  by  the  general  practice  of  civilized  countries,  the  laws  of 
the  one  will,  by  the  comity  of  nations,  be  recognized  and  executed 
in  another,  where  the  rights  of  individuals  are  concerned.''  "The 
comity  thus  extended  to  other  nations  is  no  impeachment  of  sov- 
ereignty. It  is  the  voluntary  act  of  the  nation  by  which  it  is 
offered,  and  is  inadmissible  when  contrary  to  its  policy,  or  preju- 
dicial to  its  interests.  But  it  contributes  so  largely  to  promote 
justice  between  individuals,  and  to  produce  a  friendly  intercourse 
between  the  sovereignties  to  which  they  belong,  that  courts  of 
justice  have  continually  acted  upon  it,  as  a  part  of  the  voluntary 
law  of  nations."  "It  is  not  the  comity  of  the  courts,  but  the 
comity  of  the  nation,  which  is  administered  and  ascertained  in  the 
same  way,  and  guided  by  the  same  reasoning,  by  which  all  other 
principles  of  municipal  law  are  ascertained  and  guided."  Bank 
of  Augusta  v.  Earle,  (1839)  *3  ^et-  S10^  5^9  5  Story's  Conflict  of 
Laws,  §  38. 

Mr.  Wheaton  says:  "All  the  effect,  which  foreign  laws  can 
have  in  the  territory  of  a  State,  depends  absolutely  on  the  express 
or  tacit  consent  of  that  State."  "The  express  consent  of  a  State, 
to  the  application  of  foreign  laws  within  its  territory,  is  given  by 
acts  passed  by  its  legislative  authority,  or  by  treaties  concluded 
with  other  States.  Its  tacit  consent  is  manifested  by  the  deci- 
sions of  its  judicial  and  administrative  authorities,  as  well  as  by 
the  writings  of  its  publicists.  There  is  no  obligation,  recognized 
by  legislators,  public  authorities,  and  publicists,  to  regard  foreign 
laws ;  but  their  application  is  admitted,  only  from  considerations 


JUDGMENTS.  315 

of  utility  and  the  mutual  convenience  of  States — ex  comitate,  ob 
reciprocam  utilitatem."  Wheaton's  International  Law,  (8th  ed.) 
§§  7&>  79-  "No  sovereign  is  bound,  unless  by  special  compact,  to 
execute  within  his  dominions  a  judgment  rendered  by  the  trib- 
unals of  another  State;  and  if  execution  be  sought  by  suit  upon 
the  judgment,  or  otherwise,  the  tribunal  in  which  the  suit  is 
brought,  or  from  which  execution  is  sought,  is,  on  principle,  at 
liberty  to  examine  into  the  merits  of  such  judgment,  and  to  give 
effect  to  it  or  not,  as  may  be  found  just  and  equitable.  The  gen- 
eral comity,  utility  and  convenience  of  nations  have,  however,  es- 
tablished a  usage  among  most  civilized  States,  by  which  the  final 
judgments  of  foreign  courts  of  competent  jurisdiction  are  recip- 
rocally carried  into  execution,  under  certain  regulations  and  re- 
strictions, which  differ  in  different  countries."     §  147. 

Chancellor  Kent  says:  "The  effect  to  be  given  to  foreign 
judgments  is  altogether  a  matter  of  comity,  in  cases  where  it  is 
not  regulated  by  treaty."     2  Kent  Com.  (6th  ed.)  120. 

In  order  to  appreciate  the  weight  of  the  various  authorities 
cited  at  the  bar,  it  is  important  to  distinguish  different  kinds  of 
judgments.  Every  foreign  judgment,  of  whatever  nature,  in  or- 
der to  be  entitled  to  any  effect,  must  have  been  rendered  by  a  court 
having  jurisdiction  of  the  cause,  and  upon  regular  proceedings 
and  due  notice.  In  alluding  to  different  kinds  of  judgments, 
therefore,  such  jurisdiction,  proceedings  and  notice  will  be  as- 
sumed. It  will  also  be  assumed  that  they  are  untainted  by  fraud, 
the  effect  of  which  will  be  considered  later. 

A  judgment  in  rem,  adjudicating  the  title  to  a  ship  or  other 
movable  property  within  the  custody  of  the  court,  is  treated  as 
valid  everywhere.  As  said  by  Chief  Justice  Marshall :  "The  sen- 
tence of  a  competent  court,  proceeding  in  rem,  is  conclusive  with 
respect  to  the  thing  itself,  and  operates  as  an  absolute  change  of 
the  property.  By  such  sentence,  the  right  of  a  former  owner  is 
lost,  and  a  complete  title  given  to  the  person  who  claims  under  the 
decree.  Xo  court  of  coordinate  jurisdiction  can  examine  the 
sentence.  The  question,  therefore,  respecting  its  conformity  to 
general  or  municipal  law  can  never  arise,  for  no  coordinate  trib- 
unal is  capable  of  making  the  inquiry."     Williams  v.  Armroyd,  7 


316  PRIVATE   INTERNATIONAL   LAW. 

Cranch,  423,  432.  The  most  common  illustrations  of  this  are  de- 
crees of  courts  of  admiralty  and  prize,  which  proceed  upon  prin- 
ciples of  international  law.  Croudson  v.  Leonard,  4  Cranch,  434 ; 
Williams  v.  Armroyd,  above  cited ;  Ludlow  v.  Dale,  1  Johns.  Cas. 
16.  But  the  same  rule  applies  to  judgments  in  rem  under  mu- 
nicipal law.  Hudson  v.  Guestier,  4  Cranch,  293 ;  Ennis  v.  Smith, 
14  How.  400,  430;  Wisconsin  v.  Pelican  Ins.  Co.  127  U.  S.  265, 
291 ;  Scott  v.  McNeal,  154  U.  S.  34,  46;  Castrique  v.  Imrie,  L.  R. 
4  H.  L.  414;  Monroe  v.  Douglas,  4  Sandf.  Ch.  126. 

A  judgment  affecting  the  status  of  persons,  such  as  a  decree 
confirming  or  dissolving  a  marriage,  is  recognized  as  valid  in , 
every  country,  unless  contrary  to  the  policy  of  its  own  law.  Cot- 
tin gt on 's  case,  2  Swanston,  326;  Roach  v.  Garvan,  1  Ves.  Sen. 
157;  Harvey  v.  Farnie,  8  App.  Cas.  43;  Cheely  v.  Clayton,  no 
U.  S.  701.  It  was  of  a  foreign  sentence  of  divorce,  that  Lord 
Chancellor  Nottingham,  in  the  House  of  Lords,  in  1688,  in  Cot- 
tington's  case,  above  cited,  said :  "It  is  against  the  law  of  nations 
not  to  give  credit  to  the  judgments  and  sentences  of  foreign  coun- 
tries, till  they  be  reversed  by  the  law,  and  according  to  the  form, 
of  those  countries  wherein  they  were  given.  For  what  right  hath 
one  kingdom  to  reverse  the  judgment  of  another?  And  how  can 
we  refuse  to  let  a  sentence  take  place  till  it  be  reversed?  And 
what  confusion  would  follow  in  Christendom,  if  they  should  serve 
us  so  abroad,  and  give  no  credit  to  our  sentences." 

Other  judgments,  not  strictly  in  rem,  under  which  a  person 
has  been  compelled  to  pay  money,  are  so  far  conclusive  that  the 

justice  of  the  payment  cannot  be  impeached  in  another  country, 

» 

so  as  to  compel  him  to  pay  it  again.  For  instance,  a  judgment 
in  foreign  attachment  is  conclusive,  as  between  the  parties,  of  the 
right  to  the  property  or  money  attached.  Story  on  Conflict  of 
Laws,  (2d  ed.)  §  592  a.  And  if,  on  the  dissolution  of  a  partner- 
ship, one  partner  promises  to  indemnify  the  other  against  the 
debts  of  the  partnership,  a  judgment  for  such  a  debt,  under  which 
the  latter  has  been  compelled  to  pay  it,  is  conclusive  evidence  of 
the  debt  in  a  suit  by  him  to  recover  the  amount  upon  the  promise 
of  indemnity.  It  was  of  such  a  judgment,  and  in  such  a  suit,  that 
Lord  Nottingham  said :  "Let  the  plaintiff  receive  back  so  much 


JUDGMENTS.  317 

of  the  money  brought  into  court  as  may  be  adequate  to  the  sum 
paid  on  the  sentence  for  custom,  the  justice  whereof  is  not  exam- 
inable here."  Gold  v.  Canham,  (1689)  2  Swanston,  325;  S.  C.  1 
Cas.  in  Ch.  311.  See  also  Tarleton  v.  Tarleton,  4  M.  &  S.  20; 
Konitsky  v.  Meyer,  49  N.  Y.  571. 

Other  foreign  judgments  which  have  been  held  conclusive 
of  the  matter  adjudged  were  judgments  discharging  obligations 
contracted  in  the  foreign  country  between  citizens  or  residents 
thereof.  Story's  Conflict  of  Laws,  §§  330-341 ;  May  v.  Breed,  7 
Cush.  15.  Such  was  the  case,  cited  at  the  bar,  of  Burroughs  or 
Burrows  v.  Jamineau  or  Jcmino,  Mosely,  i;  S.  C.  2  Stra.  733; 
2  Eq.  Cas.  Ab.  525,  pi.  7;  12  Vin.  Ab.  87,  pi.  9;  Sel.  Cas.  in  Ch. 
69 ;  1  Dickens,  48. 

In  that  case,  bills  of  exchange,  drawn  in  London,  were  nego- 
tiated, indorsed  and  accepted  at  Leghorn  in  Italy,  by  the  law  of 
which  an  acceptance  became  void  if  the  drawer  failed  without 
leaving  effects  in  the  acceptor's  hands.  The  acceptor,  accord- 
ingly, having  received  advices  that  the  drawer  had  failed  before 
the  acceptances,  brought  a  suit  at  Leghorn  against  the  last  en- 
dorsees, to  be  discharged  of  his  acceptances,  paid  the  money  into 
court  and  obtained  a  sentence  there,  by  which  the  acceptances 
were  vacated  as  against  those  indorsees  and  all  the  indorsers  and 
negotiators  of  the  bills,  and  the  money  deposited  was  returned  to 
him.  Being  afterwards  sued  at  law  in  England  by  subsequent 
holders  of  the  bills,  he  applied  to  the  Court  of  Chancery  and  ob- 
tained a  perpetual  injunction.  Lord  Chancellor  King,  as  reported 
by  Strange,  "was  clearly  of  opinion  that  this  cause  was  to  be  de- 
termined according  to  the  local  laws  of  the  place  where  the  bill 
was  negotiated,  and  the  plaintiff's  acceptance  of  the  bill  having 
been  vacated  and  declared  void  by  a  court  of  competent  jurisdic- 
tion, he  thought  that  sentence  was  conclusive  and  bound  the  Court 
of  Chancery  here ;"  as  reported  in  Viner,  that  "the  court  at  Leg- 
horn had  jurisdiction  of  the  thing,  and  of  the  persons ;"  and,  as 
reported  by  Mosely,  that,  though  "the  last  indorsees  had  the  sole 
property  of  the  bills,  and  were  therefore  made  the  only  parties  to 
the  suit  at  Leghorn,  yet  the  sentence  made  the  acceptance  void 
against  the  now  defendants  and  all  others."     It  is  doubtful,  at  the 


318  PRIVATE   INTERNATIONAL   LAW. 

least,  whether  such  a  sentence  was  entitled  to  the  effect  given  to 
it  by  Lord  Chancellor  King.  See  Novelli  v.  Rossi,  2  B.  &  Ad. 
757  ',  Castrique  v.  Imrie,  L.  R.  4  H.  L.  414,  435 ;  2  Smith's  Lead. 
Cas.  (2d  ed.)  450. 

The  remark  of  Lord  Hardwicke,  arguendo,  as  Chief  Justice, 
in  Boucher  v.  Lawson,  (1734)  that  "the  reason  gone  upon  by 
Lord  Chancellor  King,  in  the  case  of  Burroughs  v.  Jamineau,  was 
certainly  right,  that  where  any  court,  whether  foreign  or  domes- 
tic, that  has  the  proper  jurisdiction  of  the  case,  makes  a  deter- 
mination, it  is  conclusive  to  all  other  courts,"  evidently  had  refer- 
ence, as  the  context  shows,  to  judgments  of  a  court  having  juris- 
diction of  the  thing ;  and  did  not  touch  the  effect  of  an  executory 
judgment  for  a  debt.  Cas.  temp.  Hardw.  85,  89 ;  S.  C.  Cunning- 
ham, 144,  148. 

In  former  times,  foreign  decrees  in  admiralty  in  personam 
were  executed,  even  by  imprisonment  of  the  defendant,  by  the 
Court  of  Admiralty  in  England,  upon  letters  rogatory  from  the 
foreign  sovereign,  without  a  new  suit.  Its  right  to  do  so  was 
recognized  by  the  Court  of  King's  Bench  in  1607  in  a  case  of 
habeas  corpus,  cited  by  the  plaintiffs,  and  reported  as  follows:  "If 
a  man  of  Frizeland  sues  an  Englishman  in  Frizeland  before  the 
Governor  there,  and  there  recovers  against  him  a  certain  sum ; 
upon  which  the  Englishman,  not  having  sufficient  to  satisfy  it, 
comes  into  England,  upon  which  the  Governor  sends  his  letters 
missive  into  England,  omnes  magistratus  infra  regnum  Angliae 
rogans,  to  make  execution  of  the  said  judgment.  The  Judge  of 
the  Admiralty  may  execute  this  judgment  by  imprisonment  of  the 
party,  and  he  shall  not  be  delivered  by  the  common  law ;  for  this 
is  by  the  law  of  nations,  that  the  justice  of  one  nation  should  be 
aiding  to  the  justice  of  another  nation,  and  for  one  to  execute  the 
judgment  of  the  other;  and  the  law  of  England  takes  notice  of 
this  law,  and  the  Judge  of  the  Admiralty  is  the  proper  magistrate 
for  this  purpose;  for  he  only  hath  the  execution  of  the  civil  law 
within  the  realm.  Pasch.  5  Jac.  B.  R.,  Weir's  case,  resolved  upon 
.an  habeas  corpus,  and  remanded."  1  Rol.  Ab.  530,  pi.  12;  6  Vin. 
Ab.  512,  pi.  12.  But  the  only  question  there  raised  or  decided 
was  of  the  power  of  the  English  Court  of  Admiralty,  and  not  of 


JUDGMENTS.  319 

the  conclusiveness  of  the  foreign  sentence ;  and  in  later  times  the 
mode  of  enforcing  a  foreign  decree  in  admiralty  is  by  a  new  libel. 
See  The  City  of  Mecca,  5  P.  D.  28,  and  6  P.  D.  106. 

The  extraterritorial  effect  of  judgments  in  personam,  at  law 
or  in  equity,  may  differ,  according  to  the  parties  to  the  cause.  A 
judgment  of  that  kind  between  two  citizens  or  .residents  of  the 
country,  and  thereby  subject  to  the  jurisdiction,  in  which  it  is 
rendered,  may  be  held  conclusive  as  between  them  everywhere. 
So,  if  a  foreigner  invokes  the  jurisdiction  by  bringing  an  action 
against  a  citizen,  both  may  be  held  bound  by  a  judgment  in  favor 
of  either.  And  if  a  citizen  sues  a  foreigner,  and  judgment  is  ren- 
dered in  favor  of  the  latter,  both  may  be  held  equally  bound. 
Ricardo  v.  Garcias,  12  CI.  &  Fin.  368;  The  Griefswald,  Swabey, 
430,  435 ;  Barber  v.  Lamb,  8  C.  B.  (N.  S.)  95  ;  Lea  v.  Deakin,  1 1 
Bissell,  23. 

The  effect  to  which  a  judgment,  purely  executory,  rendered 
in  favor  of  a  citizen  or  resident  of  the  country,  in  a  suit  there 
brought  by  him  against  a  foreigner,  may  be  entitled  in  an  action 
thereon  against  the  latter  in  his  own  country — as  is  the  case  now 
before  us — presents  a  more  difficult  question,  upon  which  there 
has  been  some  diversity  of  opinion. 

Early  in  the  last  century,  it  was  settled  in  England  that  a 
foreign  judgment  on  a  debt  was  considered  not,  like  a  judgment 
of  a  domestic  court  of  record,  as  a  record  or  a  specialty,  a  lawful 
consideration  for  which  was  conclusively  presumed ;  but  as  a  sim- 
ple contract  only. 

The  English  cases,  above  referred  to,  have  been  stated  with 
the  more  particularity  and  detail,  because  they  directly  bear  upon 
the  question  what  was  the  English  law,  being  then  our  own  law, 
before  the  Declaration  of  Independence.  They  demonstrate  that 
by  that  law,  as  generally  understood,  and  as  declared  by  Hard- 
wicke,  Mansfield,  Buller,  Camden,  Eyre  and  Ellenborough,  and 
doubted  by  Kenyon  only,  a  judgment  recovered  in  a  foreign  coun- 
try for  a  sum  of  money,  when  sued  upon  in  England,  was  only 
prima  facie  evidence  of  the  demand,  and  subject  to  be  examined 
and  impeached.  The  law  of  England,  since  it  has  become  to  us 
a  foreign  country,  will  be  considered  afterwards. 


320  PRIVATE   INTERNATIONAL   LAW. 

The  law  upon  this  subject,  as  understood  in  the  United 
States,  at  the  time  of  their  separation  from  the  mother  country, 
was  clearly  set  forth  by  Chief  Justice  Parsons,  speaking  for  the 
Supreme  Judicial  Court  of  Massachusetts,  in  1813,  and  by  Mr. 
J  ustice  Story  in  his  Commentaries  on  the  Constitution  of  the  Uni- 
ted States,  published  in  1833.  Both  those  eminent  jurists  de- 
clared that  by  the  law  of  England  the  general  rule  was  that  for- 
eign judgments  were  only  prima  facie  evidence  of  the  matter 
which  they  purported  to  decide ;  and  that  by  the  common  law,  be- 
fore the  American  Revolution,  all  the  courts  of  the  several  Col- 
onies and  States  were  deemed  foreign  to  each  other,  and  conse- 
quently judgments  rendered  by  any  one  of  them  were  considered 
as  foreign  judgments,  and  their  merits  re-examinable  in  another 
Colony,  not  only  as  to  the  jurisdiction  of  the  court  which  pro- 
nounced them,  but  also  as  to  the  merits  of  the  controversy,  to  the 
extent  to  which  they  were  understood  to  be  re-examinable  in  Eng- 
land. And  they  noted  that,  in  order  to  remove  that  inconveni- 
ence, statutes  had  been  passed  in  Massachusetts,  and  in  some  of 
the  other  Colonies,  by  which  judgments  rendered  by  a  court  of 
competent  jurisdiction  in  a  neighboring  Colony  could  not  be  im- 
peached. Bissell  v.  Briggs,  9  Mass.  462,  464,  465 ;  Mass  Stat. 
I773_4>  c-  x6,  5  Prov.  Laws,  323,  369;  Story  on  the  Constitution, 
(1st  ed.)  §§  1301,  1302;  (4th  ed.)  §§  1306,  1307. 

It  was  because  of  that  condition  of  the  law,  as  between  the 
American  Colonies  and  States,  that  the  United  States,  at  the  very 
beginning  of  their  existence  as  a  nation,  ordained  that  full  faith 
and  credit  should  be  given  to  the  judgments  of  one  of  the  States 
of  the  Union  in  the  courts  of  another  of  those  States. 

By  the  Articles  of  Confederation  of  1777,  art.  4,  §  3,  "Full 
faith  and  credit  shall  be  given,  in  each  of  these  States,  to  the  rec- 
ords, acts  and  judicial  proceedings  of  the  courts  and  magistrates 
of  every  other  State."  1  Stat.  4.  By  the  Constitution  of  the 
United  States,  art.  4,  §  1,  "Full  faith  and  credit  shall  be  given 
in  each  State  to  the  public  acts,  records  and  judicial  proceedings 
of  every  other  State ;  and  the  Congress  may  by  general  laws  pre- 
scribe the  manner  in  which  such  acts,  records  and  proceedings 
shall  be  proved,  and  the  effect  thereof."     And  the  first  Congress 


JUDGMENTS.  321 

of  the  United  States  under  the  Constitution,  after  prescribing  the 
manner  in  which  the  records  and  judicial  proceedings  of  the 
courts  of  any  State  should  be  authenticated  and  proved,  enacted 
that  "the  said  records  and  judicial  proceedings,  authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  United  States,  as  they  have  by  law  or  usage  in 
the  courts  of  the  State  from  whence  the  said  records  are  or  shall 
be  taken."     Act  of  May  26,  1790,  c.  II,  1  Stat.  122;  Rev.  Stat. 

§  9°5- 

The  effect  of  these  provisions  of  the  Constitution  and  laws  of 
the  United  States  was  at  first  a  subject  of  diverse  opinions,  not 
only  in  the  courts  of  the  several  States,  but  also  in  the  Circuit 
Courts  of  the  United  States;  Mr.  Justice  Cushing,  Mr.  Justice 
Wilson  and  Mr.  Justice  Washington  holding  that  judgments  of 
the  courts  of  a  State  had  the  same  effect  throughout  the  Union 
as  within  that  State;  but  Chief  Justice  Marshall  (if  accurately 
reported)  being  of  opinion  that  they  were  not  entitled  to  conclu- 
sive effect,  and  that  their  consideration  might  be  impeached. 
Armstrong  v.  Carson,  (1794)  2  Dall.  302;  Green  v.  Sarmiento, 
(1811)  3  Wash.  C.  C.  17,  21 ;  S.  C.  Pet.  C.  C.  74,  78;  Peck  v.  Wil- 
liamson, (reported  as  in  November,  18 13,  apparently  a  mistake 
for  1812,)  1  Carolina  Law  Repository,  53. 

The  decisions  of  this  court  have  clearly  recognized  that  judg- 
ments of  a  foreign  state  are  prima  facie  evidence  only,  and  that, 
but  for  these  constitutional  and  legislative  provisions,  judgments 
of  a  State  of  the  Union,  when  sued  upon  in  another  State,  would 
have  no  greater  effect. 

In  Croudson  v.  Leonard,  (1808)  in  which  this  court  held  that 
the  sentence  of  a  foreign  court  of  admiralty  in  rem,  condemning 
a  vessel  for  breach  of  blockade,  was  conclusive  evidence  of  that 
fact  in  an  action  on  a  policy  of  insurance,  Mr.  Justice  Washing- 
ton, after  speaking  of  the  conclusiveness  of  domestic  judgments 
generally,  said :  "The  judgment  of  a  foreign  court  is  equally  con- 
clusive, except  in  the  single  instance  where  the  party  claiming  the 
benefit  of  it  applies  to  the  courts  in  England  to  enforce  it,  in  which 
case  only  the  judgment  is  prima  facie  evidence.  But  it  is  to  be 
remarked,  that  in  such  a  case,  the  judgment  is  no  more  conclusive 


322  PRIVATE   INTERNATIONAL   LAW. 

as  to  the  right  it  establishes,  than  as  to  the  fact  it  decides."  4 
Cranch,  434,  442. 

In  Mills  v.  Duryee,  (1813)  in  which  it  was  established  that, 
by  virtue  of  the  Constitution  and  laws  of  the  United  States,  the 
judgment  of  a  court  of  one  of  the  States  was  conclusive  evidence, 
in  every  court  within  the  United  States,  of  the  matter  adjudged; 
and  therefore  mil  tiel  record,  and  not  nil  debet,  was  a  proper  plea 
to  an  action  brought  in  a  court  of  the  United  States  in  the  District 
of  Columbia  upon  a  judgment  recovered  in  a  court  of  the  State 
of  New  York ;  this  court,  speaking  by  Mr.  Justice  Story,  said : 
"The  pleadings  in  an  action  are  governed  by  the  dignity  of  the 
instrument  on  which  it  is  founded.  If  it  be  a  record,  conclusive 
between  the  parties,  it  cannot  be  denied  but  by  the  plea  of  nul  tiel 
record;  and  when  Congress  gave  the  effect  of  a  record  to  the 
judgment,  it  gave  all  the  collateral  consequences."  ''Were  the 
construction  contended  for  by  the  plaintiff  in  error  to  prevail,  that 
judgments  of  the  state  courts  ought  to  be  considered  prima  facie 
evidence  only,  this  clause  in  the  Constitution  would  be  utterly  un- 
important and  illusory.  The  common  law  would  give  such  judg- 
ments precisely  the  same  effect."     7  Cranch,  481,  484,  485. 

In  Hampton  v.  McConnel,  (1818)  the  point  decided  in  Mills 
v.  Duryee  was  again  adjudged,  without  further  discussion,  in  an 
opinion  delivered  by  Chief  Justice  Marshall.     3  Wheat.  234. 

The  obiter  dictum  of  Mr.  Justice  Livingston  in  Hopkins  v. 
Lee,  (1821)  6  Wheat.  109.  114,  repeated  by  Mr.  Justice  Daniel  in 
Pennington  v.  Gibson,  (1853)  16  How.  65,  78,  as  to  the  general 
effect  of  foreign  judgments,  has  no  important  bearing  upon  the 
case  before  us. 

In  McElmoyle  v.  Cohen,  (1839)  Mr.  Justice  Wayne,  discuss- 
ing the  effect  of  the  act  of  Congress  of  1790,  said,  that  "the  ad- 
judications of  the  English  courts  have  now  established  the  rule  to 
be,  that  foreign  judgments  are  prima  facie  evidence  of  the  right 
and  matter  they  purport  to  decide."     13  Pet.  312,  325. 

In  D'Arcy  v.  Ketchum,  (1850)  in  which  this  court  held  that 
the  provisions  of  the  Constitution  and  laws  of  the  United  States 
gave  no  effect  in  one  State  to  judgments  rendered  in  another 
State  by  a  court  having  no  jurisdiction  of  the  cause  or  of  the  par- 


JUDGMENTS.  323 

ties,  Mr.  Justice  Catron  said:  "In  construing  the  act  of  1790,  the 
law  as  it  stood  when  the  act  was  passed  must  enter  into  that  con- 
struction ;  so  that  the  existing  defect  in  the  old  law  may  be  seen, 
and  its  remedy  by  the  act  of  Congress  comprehended.  Now  it 
was  most  reasonable,  on  general  principles  of  comity  and  justice, 
that,  among  States  and  their  citizens  united  as  ours  are,  judg- 
ments rendered  in  one  should  bind  citizens  of  other  States,  where 
defendants  had  been  served  with  process,  or  voluntarily  made  de- 
fence. As  these  judgments,  however,  were  only  prima  facie  evi- 
dence, and  subject  to  be  inquired  into  by  plea,  when  sued  on  in 
another  State,  Congress  saw  proper  to  remedy  the  evil,  and  to 
provide  that  such  inquiry  and  double  defence  should  not  be  al- 
lowed. To  this  extent,  it  is  declared  in  the  case  of  Mills  v.  Dur- 
yee,  Congress  has  gone  in  altering  the  old  rule."     11  How.  165, 

175,  176. 

In  Christmas  v.  Russell,  (1866)  in  which  this  court  decided 
that,  because  of  the  Constitution  and  laws  of  the  United  States,  a 
judgment  of  a  court  of  one  State  of  the  Union,  when  sued  upon 
in  a  court  of  another,  could  not  be  shown  to  have  been  procured 
by  fraud,  Mr.  Justice  Clifford,  in  delivering  the  opinion,  after  stat- 
ing that,  under  the  rules  of  the  common  law,  a  domestic  judgment, 
rendered  in  a  court  of  competent  jurisdiction,  could  not  be  collat- 
erally impeached  or  called  in  question,  said :  "Common  law  rules 
placed  foreign  judgments  upon  a  different  footing,  and  those  rules 
remain,  as  a  general  remark,  unchanged  to  the  present  time.  Un- 
der these  rules,  a  foreign  judgment  was  prima  facie  evidence  of 
the  debt,  and  it  was  open  to  examination,  not  only  to  show  that 
the  court  in  which  it  was  rendered  had  no  jurisdiction  of  the  sub- 
ject-matter, but  also  to  show  that  the  judgment  was  fraudulently 
obtained."     5  Wall.  290,  304. 

In  Bischoif  v.  IVethered,  ( 1869)  in  an  action  on  an  English 
judgment  rendered  without  notice  to  the  defendant,  other  than  by 
service  on  him  in  this  country,  this  court,  speaking  by  Mr.  Justice 
Bradley,  held  that  the  proceeding  in  England  "was  wholly  with- 
out jurisdiction  of  the  person,  and  whatever  validity  it  may  have 
in  England,  by  virtue  of  statute  law,  against  property  of  the  de- 


324  PRIVATE    INTERNATIONAL  LAW. 

fendant  there  situate,  it  can  have  no  validity  here,  even  of  a  prima 
facie  character."     9  Wall.  812,  814. 

In  Hanley  v.  Donoghue,  (1885)  116  U.  S.  I,  4,  and  in  Wis- 
consin v.  Pelican  Ins.  Co.,  (1888)  127  U.  S.  265,  292,  it  was  said 
that  judgments  recovered  in  one  State  of  the  Union,  when  proved 
in  the  courts  of  another,  differed  from  judgments  recovered  in  a 
foreign  country  in  no  other  respect  than  in  not  being  re-examin- 
able  on  their  merits,  nor  impeachable  for  fraud  in  obtaining  them, 
if  rendered  by  a  court  having  jurisdiction  of  the  cause  and  of  the 
parties. 

But  neither  in  those  cases,  nor  in  any  other,  has  this  court 
hitherto  been  called  upon  to  determine  how  far  foreign  judgments 
may  be  re-examined  upon  their  merits,  or  be  impeached  for  fraud 
in  obtaining  them. 

In  the  courts  of  the  several  States,  it  was  long  recognized  and 
assumed,  as  undoubted  and  indisputable,  that  by  our  law,  as  by 
the  law  of  England,  foreign  judgments  for  debts  were  not  conclu- 
sive, but  only  prima  facie  evidence  of  the  matter  adjudged.  Some 
of  the  cases  are  collected  in  the  margin. 

In  the  leading  case  of  Bissell  v.  Briggs,  above  cited,  Chief 
Justice  Parsons  said :  "A  foreign  judgment  may  be  produced  here 
by  a  party  to  it,  either  to  justify  himself  by  the  execution  of  that 
judgment  in  the  country  in  which  it  was  rendered,  or  to  obtain 
the  execution  of  it  from  our  courts."  "If  the  foreign  court  ren- 
dering the  judgment  had  jurisdiction  of  the  cause,  yet  the  courts 
here  will  not  execute  the  judgment,  without  first  allowing  an  in- 
quiry into  its  merits.  The  judgment  of  a  foreign  court,  there- 
fore, is  by  our  laws  considered  only  as  presumptive  evidence  of  a 
debt,  or  as  prima  facie  evidence  of  a  sufficient  consideration  of  a 
promise,  where  such  court  had  jurisdiction  of  the  cause;  and  if 
an  action  of  debt  be  sued  on  any  such  judgment,  nil  debet  is  the 
general  issue ;  or,  if  it  be  made  the  consideration  of  a  promise,  the 
general  issue  is  non  assumpsit.  On  these  issues,  the  defendant 
may  impeach  the  justice  of  the  judgment,  by  evidence  relative  to 
that  point.  On  these  issues,  the  defendant  may  also,  by  proper 
evidence,  prove  that  the  judgment  was  rendered  by  a  foreign 
court,  which  had  no  jurisdiction;  and  if  his  evidence  be  sufficient 


JUDGMENTS.  325 

for  this  purpose,  he  has  no  occasion  to  impeach  the  justice  of  the 
judgment."     9  Mass.  463,  464. 

In  a  less  known  case,  decided  in  181 5,  but  not  published  until 
1879,  the  reasons  for  this  view  were  forcibly  stated  by  Chief  Jus- 
tice Jeremiah  Smith,  speaking  for  the  Supreme  Court  of  New 
Hampshire,  as  follows : 

"The  respect  which  is  due  to  judgments,  sentences  and  de- 
crees of  courts  in  a  foreign  State,  by  the  law  of  nations,  seems  to 
be  the  same  which  is  due  to  those  of  our  own  courts.  Hence  the 
decree  of  an  admiralty  court  abroad  is  equally  conclusive  with  de- 
crees of  our  admiralty  courts.  Indeed,  both  courts  proceed  by 
the  same  rule,  are  governed  by  the  same  law — the  maritime  law 
of  nations :  Coll.  Jurid.  100 ;  which  is  the  universal  law  of  na- 
tions, except  where  treaties  alter  it. 

"The  same  comity  is  not  extended  to  judgments  or  decrees 
which  may  be  founded  on  the  municipal  laws  of  the  State  in  which 
they  are  pronounced,  Independent  States  do  not  choose  to  adopt 
such  decisions  without  examination.  These  laws  and  regulations 
may  be  unjust,  partial  to  citizens,  and  against  foreigners;  they 
may  operate  injustice  to  our  citizens,  whom  we  are  bound  to  pro- 
tect; they  may  be,  and  the  decisions  of  courts  founded  on  them, 
just  cause  of  complaint  against  the  supreme  power  of  the  State 
where  rendered.  To  adopt  them  is  not  merely  saying  that  the 
courts  have  decided  correctly  on  the  law,  but  it  is  approbating  the 
law  itself.  Wherever,  then,  the  court  may  have  proceeded  on 
municipal  law,  the  rule  is,  that  the  judgments  are  not  conclusive 
evidence  of  debt,  but  prima  facie  evidence  only.  The  proceedings 
have  not  the  conclusive  quality  which  is  annexed  to  the  records  or 
proceedings  of  our  own  courts,  where  we  approve  both  of  the  rule 
and  of  the  judges  who  interpret  and  apply  it.  A  foreign  judg- 
ment may  be  impeached ;  defendant  may  show  that  it  is  unjust,  or 
that  it  was  irregularly  or  unduly  obtained.  Doug.  5,  note.  Bry- 
ant v.  Ela,  Smith  (N.  H.)  396,  404. 

From  this  review  of  the  authorities,  it  clearly  appears  that,  at 
the  time  of  the  separation  of  this  country  from  England,  the  gen- 
eral rule  was  fully  established  that  foreign  judgments  in  per- 
sonam were  prima  facie  evidence  only,  and  not  conclusive  of  the 


326  PRIVATE    INTERNATIONAL   LAW. 

merits  of  the  controversy  between  the  parties.  But  the  extent 
and  limits  of  the  application  of  that  rule  do  not  appear  to  have 
been  much  discussed,  or  defined  with  any  approach  to  exactness, 
in  England  or  America,  until  the  matter  was  taken  up  by  Chan- 
cellor Kent  and  by  Mr.  Justice  Story. 

In  Taylor  v.  Bryden,  (1811)  an  action  of  assumpsit,  brought 
in  the  Supreme  Court  of  the  State  of  New  York,  on  a  judgment 
obtained  in  the  State  of  Maryland  against  the  defendant  as  in- 
dorser  of  a  bill  of  exchange,  and  which  was  treated  as  a  foreign 
judgment,  so  far  as  concerned  its  effect  in  New  York,  (the  deci- 
sion of  this  court  to  the  contrary  in  Mills  v.  Duryee,  7  Cranch, 
481,  not  having  yet  been  made,)  Chief  Justice  Kent  said:  "The 
judgment  in  Maryland  is  presumptive  evidence  of  a  just  demand; 
and  it  was  incumbent  upon  the  defendant,  if  he  would  obstruct 
the  execution  of  the  judgment  here,  to  show,  by  positive  proof, 
that  it  was  irregularly  or  unduly  obtained."  "To  try  over  again, 
as  of  course,  every  matter  of  fact  which  had  been  duly  decided  by 
a  competent  tribunal,  would  be  disregarding  the  comity  which  we 
justly  owe  to  the  courts  of  other  States,  and  would  be  carrying 
the  doctrine  of  re-examination  to  an  oppressive  extent.  It  would 
be  the  same  as  granting  a  new  trial  in  every  case,  and  upon  every 
question  of  fact.  Suppose  a  recovery  in  another  State,  or  in  any 
foreign  court,  in  an  action  for  a  tort,  as  for  an  assault  and  battery, 
false  imprisonment,  slander,  etc.,  and  the  defendant  was  duly 
summoned  and  appeared,  and  made  his  defence,  and  the  trial  was 
conducted  orderly  and  properly,  according  to  the  rules  of  a  civi- 
lized jurisprudence,  is  every  such  case  to  be  tried  again  here  on 
tne  merits?  I  much  doubt  whether  the  rule  can  ever  go  to  this 
length.  The  general  language  of  the  books  is  that  the  defendant 
must  impeach  the  judgment  by  showing  affirmatively  that  it  was 
unjust  by  being  irregularly  or  unfairly  procured."  But  the  case 
was  decided  upon  the  ground  that  the  defendant  had  done  no 
more  than  raise  a  doubt  of  the  correctness  of  the  judgment  sued 
on.     8  Johns.  173,  177,  178. 

Chancellor  Kent,  afterwards,  treating  of  the  same  subject  in 
the  first  edition  of  his  Commentaries,  ( 1827)  put  the  right  to  im- 
peach a  foreign  judgment  somewhat  more  broadly,  saying:   "No 


JUDGMENTS.  327 

sovereign  is  obliged  to  execute,  within  his  dominion,  a  sentence 
rendered  out  of  it ;  and  if  execution  be  sought  by  a  suit  upon  the 
judgment,  or  otherwise,  he  is  at  liberty,  in  his  courts  of  justice,  to 
examine  into  the  merits  of  such  judgment  [for  the  effect  to  be 
given  to  foreign  judgments  is  altogether  a  matter  of  comity,  in 
cases  where  it  is  not  regulated  by  treaty].  In  the  former  case, 
[of  a  suit  to  enforce  a  foreign  judgment,]  the  rule  is,  that  the  for- 
eign judgment  is  to  be  received,  in  the  first  instance,  as  prima 
facie  evidence  of  the  debt ;  and  it  lies  on  the  defendant  to  impeach 
the  justice  of  it,  or  to  show  that  it  was  irregularly  and  unduly  ob- 
tained. This  was  the  principle  declared  and  settled  by  the  House 
of  Lords,  in  1771,  in  the  case  of  Sinclair  v.  Fraser,  upon  an  appeal 
from  the  Court  of  Session  in  Scotland."  In  the  second  edition, 
(1832)  he  inserted  the  passages  above  printed  in  brackets;  and 
in  a  note  to  the  fourth  edition,  (1840)  after  citing  recent  conflict- 
ing opinions  in  Great  Britain,  and  referring  to  Mr.  Justice  Story's 
reasoning  in  his  Commentaries  on  the  Conflict  of  Laws,  §  607,  in 
favor  of  the  conclusiveness  of  foreign  judgments,  he  added,  "and 
that  is  certainly  the  more  convenient  and  the  safest  rule,  and  the 
most  consistent  with  sound  principle,  except  in  cases  in  which  the 
court  which  pronounced  the  judgment  has  not  due  jurisdiction 
of  the  case,  or  of  the  defendant,  or  the  proceeding  was  in  fraud, 
or  founded  in  palpable  mistake  or  irregularity,  or  bad  by  the  law 
of  the  rei  jndicatae;  and  in  all  such  cases  the  justice  of  the  judg- 
ment ought  to  be  impeached."  2  Kent  Com.  ( 1st  ed.)  102 ;  (later 
eds.)  120. 

Mr.  Justice  Story,  in  his  Commentaries  on  the  Conflict  of 
Laws,  first  published  in  1834,  after  reviewing  many  English  au- 
thorities, said,  "The  present  inclination  of  the  English  courts 
seems  to  be  to  sustain  the  conclusiveness  of  foreign  judgments" — 
to  which,  in  the  second  edition  in  1841,  he  added,  "although  cer- 
tainly there  yet  remains  no  inconsiderable  diversity  of  opinion 
among  the  learned  judges  of  the  different  tribunals."     §  606. 

He  then  proceeded  to  state  his  own  view  of  the  subject,  on 
principle,  saying:  "It  is,  indeed,  very  difficult  to  perceive  what 
could  be  done,  if  a  different  doctrine  were  maintainable  to  the  full 
extent  of  opening  all  the  evidence  and  merits  of  the  cause  anew  on 


328  PRIVATE   INTERNATIONAL   LAW. 

a  suit  upon  the  foreign  judgment.  Some  of  the  witnesses  may 
be  since  dead;  some  of  the  vouchers  may  be  lost  or  destroyed. 
The  merits  of  the  cause,  as  formerly  before  the  court  upon  the 
whole  evidence,  may  have  been  decidedly  in  favor  of  the  judg- 
ment ;  upon  a  partial  possession  of  the  original  evidence,  they  may 
now  appear  otherwise.  Suppose  a  case  purely  sounding  in  dam- 
ages, such  as  an  action  for  an  assault,  for  slander,  for  conversion 
of  property,  for  a  malicious  prosecution,  or  for  a  criminal  conver- 
sation ;  is  the  defendant  to  be  at  liberty  to  retry  the  whole  merits, 
and  to  make  out,  if  he  can,  a  new  case  upon  new  evidence?  Or 
is  the  court  to  review  the  former  decision,  like  a  court  of  appeal, 
upon  the  old  evidence  ?  In  a  case  of  covenant,  or  of  debt  or  of  a 
breach  of  contract,  are  all  the  circumstances  to  be  re-examined 
anew?  If  they  are,  by  what  laws  and  rules  of  evidence  and  prin- 
ciples of  justice  is  the  validity  of  the  original  judgment  to  be 
tried?  Is  the  court  to  open  the  judgment,  and  to  proceed  ex 
aequo  et  bono?  Or  is  it  to  administer  strict  law,  and  stand  to  the 
doctrines  of  the  local  administration  of  justice?  Is  it  to  act  upon 
the  rules  of  evidence  acknowledged  in  its  own  jurisprudence,  or 
upon  those  of  the  foreign  jurisprudence?  These  and  many  more 
questions  might  be  put  to  show  the  intrinsic  difficulties  of  the  sub- 
ject. Indeed,  the  rule  that  the  judgment  is  to  be  prima  facie  evi- 
dence for  the  plaintiff  would  be  a  mere  delusion,  if  the  defendant 
might  still  question  it  by  opening  all  or  any  of  the  original  merits 
on  his  side;  for  under  such  circumstances  it  would  be  equivalent 
to  granting  a  new  trial.  It  is  easy  to  understand  that  the  defend- 
ant may  be  at  liberty  to  impeach  the  original  justice  of  the  judg- 
ment by  showing  that  the  court  had  no  jurisdiction,  or  that  he 
never  had  any  notice  of  the  suit ;  or  that  it  was  procured  by  fraud ; 
or  that  upon  its  face  it  is  founded  in  mistake ;  or  that  it  is  irregu- 
lar and  bad  by  the  local  law,  fori  rei  judicatae.  To  such  an  ex- 
tent the  doctrine  is  intelligible  and  practicable.  Beyond  this,  the 
right  to  impugn  the  judgment  is  in  legal  effect  the  right  to  retry 
the  merits  of  the  original  cause  at  large,  and  to  put  the  defendant 
upon  proving  those  merits."     §  607. 

He  then  observed :   "The  general  doctrine  maintained  in  the 
American  courts  in  relation  to  foreign  judgments  certainly  is  that 


JUDGMENTS.  329 

they  are  prima  facie  evidence,  but  that  they  are  impeachable.  But 
how  far  and  to  what  extent  this  doctrine  is  to  be  carried  does  not 
seem  to  be  definitely  settled.  It  has  been  declared  that  the  juris- 
diction of  the  court,  and  its  power  over  the  parties  and  the  things 
in  controversy,  may  be  inquired  into ;  and  that  the  judgment  may 
be  impeached  for  fraud.  Beyond  this  no  definite  lines  have  as 
yet  been  drawn."     §  608. 

After  stating  the  effect  of  the  Constitution  of  the  United 
States,  and  referring  to  the  opinions  of  some  foreign  jurists,  and 
to  the  law  of  France,  which  allows  the  merits  of  foreign  judgments 
to  be  examined,  Mr.  Justice  Story  concluded  his  treatment  of  the 
subject  as  follows :  "It  is  difficult  to  ascertain  what  the  prevailing 
rule  is  in  regard  to  foreign  judgments  in  some  of  the  other  nations 
of  continental  Europe ;  whether  they  are  deemed  conclusive  evi- 
dence, or  only  prima  facie  evidence.  Holland  seems  at  all  times, 
upon  the  general  principle  of  reciprocity,  to  have  given  great 
weight  to  foreign  judgments,  and  in  many  cases,  if  not  in  all  cases, 
to  have  given  to  them  a  weight  equal  to  that  given  to  domestic 
judgments,  wherever  the  like  rule  of  reciprocity  with  regard  to 
Dutch  judgments  has  been  adopted  by  the  foreign  country  whose 
judgment  is  brought  under  review.  This  is  certainly  a  very  rea- 
sonable rule,  and  may  perhaps  hereafter  work  itself  firmly  into  the 
structure  of  international  jurisprudence."     §  618. 

In  Bradstreet  v.  Neptune  Ins.  Co.,  (1839)  in  the  Circuit 
Court  of  the  United  States  for  the  District  of  Massachusetts,  Mr. 
Justice  Story  said:  "If  a  civilized  nation  seeks  to  have  the  sen- 
tences of  its  own  courts  held  of  any  validity  elsewhere,  they  ought 
to  have  a  just  regard  to  the  rights  and  usages  of  other  civilized 
nations,  and  the  principles  of  public  and  national  law  in  the  ad- 
ministration of  justice."     3  Sumner,  600,  608,  609. 

In  Burn-ham  v.  Webster,  (1845)  in  an  action  of  assumpsit 
upon  a  promissory  note,  brought  in  the  Circuit  Court  of  the  Uni- 
ted States  for  the  District  of  Maine,  the  defendant  pleaded  a  for- 
mer judgment  in  the  Province  of  New  Brunswick  in  his  favor  in 
an  action  there  brought  by  the  plaintiff;  the  plaintiff  replied  that 
the  note  was  withdrawn  from  that  suit,  by  consent  of  parties  and 
leave  of  the  court,  before  verdict  and  judgment;  and  the  defend- 


330  PRIVATE  INTERNATIONAL  LAW. 

ant  demurred  to  the  replication.  Judge  Ware,  in  overruling  the 
demurrer,  said :  "Whatever  difference  of  opinion  there  may  be  as 
to  the  binding  force  of  foreign  judgments,  all  agree  that  they  are 
not  entitled  to  the  same  authority  as  the  judgments  of  domestic 
courts  of  general  jurisdiction.  They  are  but  evidence  of  what 
they  purport  to  decide,  and  liable  to  be  controlled  by  counter  evi- 
dence, and  do  not,  like  domestic  judgments,  import  absolute  verity 
and  remain  incontrovertible  and  conclusive  until  reversed."  And 
he  added  that,  if  the  question  stood  entirely  clear  from  authority, 
he  should  be  of  opinion  that  the  plaintiff  could  not  be  allowed  to 
deny  the  validity  of  the  proceedings  of  a  court  whose  authority  he 
had  invoked.     2  Ware,  236,  239,  241. 

At  a  subsequent  trial  of  that  case  before  a  jury,  ( 1846)  1 
Woodb.  &  Min.  172,  the  defendant  proved  the  judgment  in  New 
Brunswick.  The  plaintiff  then  offered  to  prove  the  facts  stated 
in  his  replication,  and  that  any  entry  on  the  record  of  the  judg- 
ment in  New  Brunswick  concerning  this  note  was  therefore  by 
mistake  or  inadvertence.  This  evidence  was  excluded,  and  a  ver- 
dict taken  for  the  plaintiff,  subject  to  the  opinion  of  the  court. 
Mr.  Justice  Woodbury,  in  granting  a  new  trial,  delivered  a 
thoughtful  and  discriminating  opinion  upon  the  effect  of  foreign 
judgments,  from  which  the  following  passages  are  taken: 

"They  do,  like  domestic  ones,  operate  conclusively,  ex  pro- 
prio  vigore,  within  the  governments  in  which  they  are  rendered, 
but  not  elsewhere.  When  offered  and  considered  elsewhere,  they 
are,  ex  comitate,  treated  with  respect,  according  to  the  nature  of 
the  judgment,  and  the  character  of  the  tribunal  which  rendered 
it,  and  the  reciprocal  mode,  if  any,  in  which  that  government  treats 
cur  judgments,  and  according  to  the  party  offering  it,  whether 
having  sought  or  assented  to  it  voluntarily  or  not,  so  as  to  give  it 
in  some  degree  the  force  of  a  contract,  and  hence  to  be  respected 
elsewhere  by  analogy  according  to  the  lex  loci  contractus.  With 
these  views,  I  would  go  to  the  whole  extent  of  the  cases  decided 
by  Lord  Mansfield  and  Buller;  and  where  the  foreign  judgment 
is  not  in  rem,  as  it  is  in  admiralty,  having  the  subject-matter  be- 
fore the  court,  and  acting  on  that  rather  than  the  parties,  I  would 


JUDGMENTS.  331 

consider  it  only  prima  facie  evidence  as  between  the  parties  to  it." 

P-  !/5- 

"By  returning  to  that  rule,  we  are  enabled  to  give  parties,  at 
times,  most  needed  and  most  substantial  relief,  such  as  in  judg- 
ments abroad  against  them  without  notice,  or  without  a  hearing 
on  the  merits,  or  by  accident  or  mistake  of  facts,  as  here,  or  on 
rules  of  evidence  and  rules  of  law  they  never  assented  to,  being 
foreigners  and  their  contracts  made  elsewhere,  but  happening  to 
be  travelling  through  a  foreign  jurisdiction,  and  being  compelled 
in  invitum  to  litigate  there."     p.  177. 

"Nor  would  I  permit  the  prima  facie  force  of  the  foreign 
judgment  to  go  far,  if  the  court  was  one  of  a  barbarous  or  semi- 
barbarous  government,  and  acting  on  no  established  principles  of 
civilized  jurisprudence,  and  not  resorted  to  willingly  "by  both  par- 
ties, or  both  not  inhabitants  and  citizens  of  the  country.  Nor  can 
much  comity  be  asked  for  the  judgments  of  another  nation,  which, 
like  France,  pays  no  respect  to  those  of  other  countries — except, 
as  before  remarked,  on  the  principle  of  the  parties  belonging 
there,  or  assenting  to  a  trial  there."     p.  179. 

"On  the  other  hand,  by  considering  a  judgment  abroad  as 
only  prima  facie  valid,  I  would  not  allow  the  plaintiff  abroad,  who 
had  sought  it  there,  to  avoid  it,  unless  for  accident  or  mistake,  as 
here.  Because,  in  other  respects,  having  been  sought  there  by 
him  voluntarily,  it  does  not  lie  in  his  mouth  to  complain  of  it.  Nor 
would  I  in  any  case  permit  the  whole  merits  of  the  judgment  re- 
covered abroad  to  be  put  in  evidence  as  a  matter  of  course;  but 
being  prima  facie  correct,  the  party  impugning  it,  and  desiring  a 
hearing  of  its  merits,  must  show  first,  specifically,  some  objection 
to  the  judgment's  reaching  the  merits,  and  tending  to  prove  they 
had  not  been  acted  on;  or  [as?]  by  showing  there  was  no  juris- 
diction in  the  court,  or  no  notice,  or  some  accident  or  mistake,  or 
fraud,  which  prevented  a  full  defence,  and  has  entered  into 
the  judgment ;  or  that  the  court  either  did  not  decide  at  all  on 
the  merits,  or  was  a  tribunal  not  acting  in  conformity  to  any 
set  of  legal  principles,  and  was  not  willingly  recognized  by  the 
party  as  suitable  for  adjudicating  on  the  merits.  After  matters 
like  these  are  proved,  I  can  see  no  danger,  but  rather  great  safety 


332  PRIVATE    INTERNATIONAL   LAW. 

in  the  administration  of  justice,  in  permitting,  to  every  party  be- 
fore us,  at  least  one  fair  opportunity  to  have  the  merits  of  his  case 
fully  considered,  and  one  fair  adjudication  upon  them,  before  he 
is  estopped  forever."     p.  180. 

In  De  Brimont  v.  Penninian,  (1873)  m  tne  Circuit  Court  of 
the  United  States  for  the  Southern  District  of  New  York,  Judge 
Woodruff  said:  "The  principle  on  which  foreign  judgments  re- 
ceive any  recognition  from  our  courts  is  one  of  comity.  It  does 
not  require,  but  rather  forbids  it,  where  such  a  recognition  works 
a  direct  violation  of  the  policy  of  our  laws,  and  does  violence  to 
what  we  deem  the  rights  of  our  citizens."  And  he  declined  to 
maintain  an  action  against  a  citizen  of  the  United  States  (whose 
daughter  had  been  married  in  France  to  a  French  citizen)  upon  a 
decree  of  a  French  court  requiring  the  defendant,  then  resident  in 
France  and  duly  served  with  process  there,  to  pay  an  annuity  to 
his  son-in-law.     10  Blatchford,  436,  441. 

Mr.  Justice  Story  and  Chancellor  Kent,  as  appears  by  the 
passages  above  quoted  from  their  commentaries,  concurred  in  the 
opinion  that,  in  a  suit  upon  a  foreign  judgment,  the  whole  merits 
of  the  case  could  not,  as  matter  of  course,  be  re-examined  anew ; 
but  that  the  defendant  was  at  liberty  to  impeach  the  judgment, 
not  only  by  showing  that  the  court  had  no  jurisdiction  of  the  case, 
or  of  the  defendant,  but  also  by  showing  that  it  was  procured  by 
fraud,  or  was  founded  on  clear  mistake  or  irregularity,  or  was  bad 
by  the  law  of  the  place  where  it  was  rendered.  Story's  Conflict 
of  Laws,  §  607 ;  2  Kent  Com.  (6th  ed.)  120. 

The  word  "mistake"  was  evidently  used  by  Story  and  Kent, 
in  this  connection,  not  in  its  wider  meaning  of  error  in  judgment, 
whether  upon  the  law  or  upon  the  facts ;  but  in  the  stricter  sense 
cf  misapprehension  or  oversight,  and  as  equivalent  to  what,  in 
Ditrnham  v.  Webster,  before  cited,  Mr.  Justice  Woodbury  spoke 
of  as  "some  objection  to  the  judgment's  reaching  the  merits,  and 
tending  to  prove  that  they  had  not  been  acted  on ;"  "some  accident 
or  mistake,"  or  "that  the  court  did  not  decide  at  all  on  the  merits." 
1  Woodb.  &  Min.  180. 

The  suggestion  that  a  foreign  judgment  might  be  impeached 
for  error  in  law  of  the  country  in  which  it  was  rendered  is  hardly 


JUDGMENTS.  333 

consistent  with  the  statement  of  Chief  Justice  Marshall,  when, 
speaking  of  the  disposition  of  this  court  to  adopt  the  construction 
given  to  the  laws  of  a  State  by  its  own  courts,  he  said:  "This 
course  is  founded  on  the  principle,  supposed  to  be  universally  rec- 
ognized, that  the  judicial  department  of  every  government,  where 
such  department  exists,  is  the  appropriate  organ  for  construing 
the  legislative  acts  of  that  government.  Thus,  no  court  in  the 
universe  which  professed  to  be  governed  by  principle,  would,  we 
presume,  undertake  to  say,  that  the  courts  of  Great  Britain,  or  of 
France,  or  of  any  other  nation,  had  misunderstood  their  own  stat- 
utes, and  therefore  erect  itself  into  a  tribunal  which  should  cor- 
rect such  misunderstanding.  We  receive  the  construction  given 
by  the  courts  of  the  nation  as  the  true  sense  of  the  law,  and  feel 
ourselves  no  more  at  liberty  to  depart  from  that  construction,  than 
to  depart  from  the  words  of  the  statute."  Elmendorf  v.  Taylor, 
(1825)  10  Wheat.  152,  159,  160. 

In  recent  times,  foreign  judgments  rendered  within  the  do- 
minions of  the  English  Crown,  and  under  the  law  of  England, 
after  a  trial  on  the  merits,  and  no  want  of  jurisdiction,  and  no 
fraud  or  mistake,  being  shown  or  offered  to  be  shown,  have  been 
treated  as  conclusive  by  the  highest  courts  of  New  York,  Maine 
and  Illinois.  Lazier  v.  Wescott,  (1862)  26  N.  Y.  146,  150; 
Dunstan  v.  Higgins,  (1893)  138  N.  Y.  70,  74;  Rankin  v.  God- 
dcird,  (1866)  54  Maine,  28,  and  (1868)  55  Maine,  389;  Baker  v. 
Pohncr,  (1876)  83  Illinois,  568.  In  two  early  cases  in  Ohio,  it 
was  said  that  foreign  judgments  were  conclusive,  unless  shown 
Lo  have  been  obtained  by  fraud.  Silver  Lake  Bank  v.  Harding, 
(1832)  5  Ohio,  545,  547;  Anderson  v.  Anderson,  (1837)  8  Ohio, 
108,  no.  But  in  a  later  case  in  that  State  it  was  said  that  they 
were  only  prima  facie  evidence  of  indebtedness.  Pelton  v.  Plat- 
tier,  (1844)  13  Ohio,  209,  217.  In  Jones  v.  Jamison,  (i860)  15 
La.  Ann.  35,  the  decision  was  only  that,  by  virtue  of  the  statutes 
of  Louisiana,  a  foreign  judgment  merged  the  original  cause  of 
action  as  against  the  plaintiff. 

The  result  of  the  modern  decisions  in  England,  after  much 
diversity,  not  to  say  vacillation  of  opinion,  does  not  greatly  differ 
(so  far  as  concerns  the  aspects  in  which  the  English  courts  have 


334  PRIVATE    INTERNATIONAL   LAW. 

been  called  upon  to  consider  the  subject)  from  the  conclusions  of 
Chancellor  Kent  and  of  Justices  Story  and  Woodbury. 

At  one  time,  it  was  held  that,  in  an  action  brought  in  England 
upon  a  judgment  obtained  by  the  plaintiff  in  a  foreign  country, 
the  judgment  must  be  assumed  to  be  according  to  the  law  of  that 
country,  unless  the  contrary  was  clearly  proved — manifestly  im- 
plying that  proof  on  that  point  was  competent.  Becquet  v.  Mc- 
Carthy, ^1831)  2  B.  &  Ad.  951,  957;  Alivon  v.  Furnival,  (1834) 
1  Cr.,  M.  &  R.  277,  293 ;  S.  C.  4  Tyrwh.  751,  768. 

Lord  Brougham,  in  the  House  of  Lords,  as  well  as  Chief  Jus- 
tice Tindal  and  Chief  Justice  Wilde  (afterwards  Lord  Chancellor 
Truro)  and  their  associates,  in  the  Common  Bench,  considered 
it  to  be  well  settled  that  an  Irish  or  Colonial  judgment,  or  a  for- 
eign judgment,  was  not,  like  a  judgment  of  a  domestic  court  of 
record,  conclusive  evidence,  but  only,  like  a  simple  contract, 
prima  facie  evidence  of  a  debt.  Houlditch  v.  Donegal,  (1834)  8 
Bligh  N.  R.  301,  346;  5\  C.  2  CI.  &  Fin.  470,  476-479 ;  Don  v.  Lip- 
hiann,  (1837)  5  CI.  &  Fin.  1,  20-22;  Smith  v.  Nichols,  (1839)  7 
Scott,  147,  166-170;  S.  C.  5  Bing.  N.  C.  208,  220-226;  7  Dowl. 
282;  Bank  of  Australasia  v.  Harding,  (1850)  9  C.  B.  661,  686, 
687. 

On  the  other  hand,  Vice  Chancellor  Shadwell,  upon  an  im- 
perfect review  of  the  early  cases,  expressed  the  opinion  that  a  for- 
eign judgment  was  conclusive.  Martin  v.  Nicolls,  (1830)  3 
Sim.  458. 

Like  opinions  were  expressed  by  Lord  Denman,  speaking  for 
the  Court  of  Queen's  Bench,  and  by  Vice  Chancellor  Wigram,  in 
cases  of  Irish  or  Colonial  judgments,  which  were  subject  to  direct 
appellate  review  in  England.  Ferguson  v.  Mahon,  (1839)  ll 
Ad.  &  El.  179,  183;  5".  C.  3  Per.  &  Dav.  143,  146;  Henderson  v. 
Henderson,  (1844),  6  Q.  B.  288,  298,  299;  Henderson  v.  Hen- 
derson, (1843)  3  Hare,  100,  118. 

In  Bank  of  Australasia  v.  Nias,  (1851)  in  an  action  upon  an 
Australian  judgment,  pleas  that  the  original  promises  were  not 
made,  and  that  those  promises,  if  made,  were  obtained  by  fraud, 
were  held  bad  on  demurrer.  Lord  Campbell,  in  delivering  judg- 
ment, referred  to  Story  on  the  Conflict  of  Laws,  and  adopted  sub- 


JUDGMENTS.  335 

stantially  his  course  of  reasoning  in  §  607,  above  quoted,  with  re- 
gard to  foreign  judgments.  But  he  distinctly  put  the  decision  upon 
the  ground  that  the  defendant  might  have  appealed  to  the  Judicial 
Committee  of  the  Privy  Council,  and  thus  have  procured  a  review 
of  the  colonial  judgment.  And  he  took  the  precaution  to  say: 
"How  far  it  would  be  permitted  to  a  defendant  to  impeach  the 
competency,  or  the  integrity,  of  a  foreign  court  from  which  there 
was  no  appeal,  it  is  unnecessary  here  to  inquire."     16  Q.  B.  717, 

734-737- 

The  English  courts,  however,  have  since  treated  that  decision 
as  establishing  that  a  judgment  of  any  competent  foreign  court 
could  not,  in  an  action  upon  it,  be  questioned,  either  because  that 
court  had  mistaken  its  own  law,  or  because  it  had  come  to  an  er- 
roneous conclusion  upon  the  facts.  De  Cosse  Brissac  v.  Rath- 
bone,  (1861)  6  H.  &  N.  301 ;  Scott  v.  Pilkington,  (1862)  2  B.  & 
S.  11,  41,  42;  Vanquelin  v.  Bouard,  (1863)  15  C.  B.  (N.  S.)  341, 
368;  Castriqne  v.  Imrie,  (1870)  L.  R.  4  H.  L.  414,  429,  430;  God- 
ard  v.  Gray,  (1870)  L.  R.  6  Q.  B.  139,  150;  Ochsenbein  v.  Pape- 
lier,  (1873)  L.  R.  8  Ch.  695,  701.  In  Meyer  v.  Ralli,  (1876)  a 
judgment  in  rem,  rendered  by  a  French  court  of  competent  juris- 
diction, was  held  to  be  re-examinable  upon  the  merits,  solely  be- 
cause it  was  admitted  by  the  parties,  in  the  special  case  upon 
which  the  cause  was  submitted  to  the  English  court,  to  be  mani- 
festly erroneous  in  regard  to  the  law  of  France.     1  C.  P.  D.  358. 

In  view  of  the  recent  decisions  in  England,  it  is  somewhat 
remarkable  that,  by  the  Indian  Code  of  Civil  Procedure  of  1877, 
"no  foreign  judgment"  (which  is  defined  as  a  judgment  of  "a 
civil  tribunal  beyond  the  limits  of  British  India,  and  not  having 
authority  in  British  India,  nor  established  by  the  Governor  Gen- 
eral in  Council")  "shall  operate  as  a  bar  to  a  suit  in  British  India," 
"if  it  appears  on  the  face  of  the  proceeding  to  be  founded  on  an 
incorrect  view  of  international  law,"  or  "if  it  is,  in  the  opinion  of 
the  court  before  which  it  is  produced,  contrary  to  natural  jus- 
tice."    Piggott  on  Foreign  Judgments,  (2d  ed.)  380,  381. 

It  was  formerly  understood  in  England  that  a  foreign  judg- 
ment was  not  conclusive,  if  it  appeared  upon  its  face  to  be  founded 
on  a  mistake  or  disregard  of  English  law.     Arnott  v.  Redfern, 


336  PRIVATE    INTERNATIONAL   LAW. 

{  1825-6)  2  Car.  &  P.  88,  and  3  Bing.  353  •  S.  C.  1 1  J.  B.  Moore, 
209;  Novell*  v.  Rossi,  (1831)  2  B.  &  Ad.  757;  3  Burge  on  Col- 
onial and  Foreign  Laws,  1065  ;  2  Smith's  Lead.  Cas.  (2d  ed.)  448 ; 
Reimers  v.  Drnce,  (1856)  23  Beavan,  145. 

In  Simpson  v.  Fogo,  (i860)  1  Johns.  &  Hem.  18,  and  (1862), 
1  Hem.  &  Mil.  195,  Vice-Chancellor  Wood  (afterwards  Lord 
Hatherley)  refused  to  give  effect  to  a  judgment  in  personam  of  a 
court  in  Louisiana,  which  had  declined  to  recognize  the  title  of  a 
mortgagee  of  an  English  ship  under  the  English  law.  In  deliver- 
ing judgment  upon  demurrer,  he  said:  "The  State  of  Louisiana 
may  deal  as  it  pleases  with  foreign  law ;  but  if  it  asks  courts  of 
this  country  to  respect  its  law,  it  must  be  on  a  footing  of  paying  a 
like  respect  to  ours.  Any  comity  between  the  courts  of  two  na- 
tions holding  such  opposite  doctrines  as  to  the  authority  of  the 
lex  loci  is  impossible.  While  the  courts  of  Louisiana  refuse  to 
recognize  a  title  acquired  here  which  is  valid  according  to  our 
law,  and  hand  over  to  their  own  citizens  property  so  acquired, 
they  cannot  at  the  same  time  expect  us  to  defer  to  a  rule  of  their 
law  which  we  are  no  more  bound  to  respect  than  a  law 
that  any  title  of  foreigners  should  be  disregarded  in  favor  of 
citizens  of  Louisiana.  The  answer  to  such  a  demand  must  be, 
that  a  country  which  pays  so  little  regard  to  our  laws,  as  to  set 
aside  a  paramount  title  acquired  here,  must  not  expect  at  our 
hands  any  greater  regard  for  the  competing  title  so  acquired  by 
the  citizens  of  that  country."  1  Johns.  &  Hem.  28,  29.  And 
upon  motion  for  a  decree,  he  elaborated  the  same  view,  beginning 
by  saying,  "Whether  this  judgment  does  so  err  or  not  against  the 
recognized  principles  of  what  has  been  commonly  called  the  com- 
ity of  nations,  by  refusing  to  regard  the  law  of  the  country  where 
the  title  to  the  ship  was  acquired,  is  one  of  the  points  which  I  have 
to  consider ;"  and  concluding  that  it  was  "so  contrary  to  law,  and 
to  what  is  required  by  the  comity  of  nations,"  that  he  must  disre- 
gard it.  1  Hem.  &  Mil.  222-247.  See  also  Liverpool  Co.  v. 
Hunter,  (1867)  L.  R.  4  Eq.  62,  68,  and  (1868)  L.  R.  3  Ch.  479, 
484. 

In  Scott  v.  Pilkington,  ( 1862)  Chief  Justice  Cockburn  treated 
it  as  an  open  question  whether  a  judgment  recovered  :n  New  York 


JUDGMENTS.  337 

for  a  debt  could  be  impeached  on  the  ground  that  the  record 
showed  that  the  foreign  court  ought  to  have  decided  the  case  ac- 
cording to  English  law,  and  had  either  disregarded  the  comity  of 
nations  by  refusing  to  apply  the  English  law,  or  erred  in  its  view 
of  English  law.  2  B.  &  S.  n,  42.  In  Castrique  v.  lmrie,  (1870) 
the  French  judgment  which  was  adjudged  not  to  be  impeachable 
for  error  in  law,  French  or  English,  was,  as  the  House  of  Lords 
construed  it,  a  judgment  ill  rem,  under  which  the  ship  to  which 
the  plaintiff  in  England  claimed  title  had  been  sold.  L.  R.  4  H. 
L.  414.  In  Godard  v.  Gray,  (1870)  shortly  afterwards,  in  which 
the  Court  of  Queen's  Bench  held  that  a  judgment  in  personam 
of  a  French  court  could  not  be  impeached  because  it  had  put  a 
construction  erroneous,  according  to  English  law,  upon  an  Eng- 
lish contract,  the  decision  was  put  by  Justices  Blackburn  and 
Mellor  upon  the  ground  that  it  did  not  appear  that  the  foreign 
court  had  "knowingly  and  perversely  disregarded  the  rights  given 
by  the  English  law ;"  and  by  Justice  Hannen,  solely  upon  the 
ground  that  the  defendant  did  not  appear  to  have  brought  the 
English  law  to  the  knowledge  of  the  foreign  court.  L.  R.  6  Q. 
B.  139,  149,  154.  In  Messina  v.  Petrococchino,  (1872)  Sir  Rob- 
ert Phillimore,  delivering  judgment  in  the  Privy  Council,  said: 
"A  foreign  judgment  of  a  competent  court  may  indeed  be  im- 
peached, if  it  carries  on  the  face  of  it  a  manifest  error."  L.  R. 
4  P.  C.  144,  157. 

The  result  of  the  English'  decisions,  therefore,  would  seem 
to  be  that  a  foreign  judgment  in  personam  may  be  impeached  for 
a  manifest  and  wilful  disregard  of  the  law  of  England. 

Lord  Abinger,  Baron  Parke  and  Baron  Alderson  were  wont 
to  say  that  the  judgment  of  a  foreign  court  of  competent  juris- 
diction for  a  sum  certain  created  a  duty  or  legal  obligation  to  pay 
that  sum ;  or,  in  Baron  Parke's  words,  that  the  principle  on  which 
the  judgments  of  foreign  and  colonial  courts  are  supported  and 
enforced  was,  "that  where  a  court  of  competent  jurisdiction  has 
adjudicated  a  certain  sum  to  be  due  from  one  person  to  another, 
a  legal  obligation  arises  to  pay  that  sum,  on  which  an  action  of 
debt  to  enforce  the    judgment  may  be  maintained."     Russell  v. 


338  PRIVATE  INTERNATIONAL  LAW. 

Smyth,    (1842)  9  M.  &  W.  810,  818,   819;    Williams   v.  Jones, 
(1845)  13  M.  &  W.  628,  633,  634. 

But  this  was  said  in  explaining  why,  by  the  technical  rules 
of  pleading,  an  action  of  assumpsit,  or  of  debt,  would  lie  upon  a 
foreign  judgment;  and  had  no  reference  to  the  question  how  far 
such  a  judgment  was  conclusive  of  the  matter  adjudged.  At 
common  law,  an  action  of  debt  would  lie  on  a  debt  appearing  by  a 
record, or  by  any  other  specialty,  such  as  a  contract  under  seal ;  and 
would  also  lie  for  a  definite  sum  of  money  due  by  simple  contract. 
Assumpsit  would  not  lie  upon  a  record  or  other  specialty;  but 
would  lie  upon  any  other  contract,  whether  expressed  by  the  party, 
or  implied  by  law.  In  an  action  upon  a  record,  or  upon  a  contract 
under  seal,  a  lawful  consideration  was  conclusively  presumed  to 
exist,  and  could  not  be  denied ;  but  in  an  action,  whether  in  debt 
01  in  assumpsit,  upon  a  simple  contract,  express  or  implied,  the 
consideration  was  open  to  inquiry.  A  foreign  judgment  was  not 
considered,  like  a  judgment  of  a  domestic  court  of  record,  as  a 
record  or  specialty.  The  form  of  action,  therefore,  upon  a  for- 
eign judgment  was  not  in  debt,  grounded  upon  a  record  or  a  spe- 
cialty ;  but  was  either  in  debt,  as  for  a  definite  sum  of  money 
due  by  simple  contract,  or  in  assumpsit  upon  such  a  con- 
tract. A  foreign  judgment,  being  a  security  of  no  higher  nature 
than  the  original  cause  of  action,  did  not  merge  that  cause  of  ac- 
tion. The  plaintiff  might  sue,  either  on  the  judgment,  or  on  the 
original  cause  of  action ;  and  in  either  form  of  suit  the  foreign 
judgment  was  only  evidence  of  a  liability  equivalent  to  a  simple 
contract,  and  was  therefore  liable  to  be  controlled  by  such  com- 
petent evidence  as  the  nature  of  the  case  admitted.  See  cases  al- 
1  eady  cited,  especially  Walker  v.  Witter,  1  Doug.  1 ;  Phillips  v. 
Hunter,  2  H.  Bl.  402,  410;  Bissell  v.  Briggs,  9  Mass.  463,  464; 
Mills  v.  Duryee,  7  Cranch,  481,  485  ;  D'Arcy  v.  Ketchum,  11  How. 
165,  176;  Hall  v.  Odber,  11  East,  118;  Smith  v.  Nicolls,  7  Scott. 
147;  S.  C.  5  Bing.  N.  C.  208.  See  also  Grant  v.  Easton,  13  Q. 
B.  D.  302,  303 ;  Lyman  v.  Brozvn,  2  Curtis,  559. 

Mr.  Justice  Blackburn,  indeed,  in  determining  how  far  a  for- 
eign judgment  could  be  impeached,  either  for  error  in  law,  or  for 
want  of  jurisdiction,  expressed  the  opinion  that  the  effect  of  such 


JUDGMENTS.  339 

a  judgment  did  not  depend  upon  what  he  termed  "that  which  is 
loosely  called  'comity,'  "  but  upon  the  saying  of  Baron  Parke, 
above  quoted ;  and  consequently  "that  anything  which  negatives 
the  existence  of  that  legal  obligation,  or  excuses  the  defendant 
from  the  performance  of  it,  must  form  a  good  defence  to  the  ac- 
tion." Godard  v.  Gray,  (1870)  L.  R.  6  Q.  B.  139,  148,  149; 
Schibsby  v.  Westonholz,  (1870)  L.  R.  6  Q.  B.  155,  159.  And 
his  example  has  been  followed  by  some  other  English  judges. 
Fry,  J.,  in  Rousillon  v.  Rousillon,  (1880)  14  Ch.  D.  351,  370; 
North,  J.,  in  Nouvion  v.  Freeman,  (1887)  35  Ch.  D.  704,  714, 
715;  Cotton  and  Lindley,  L.  JJ.,  in  Nouvion  v.  Freeman,  (1887) 
37  Ch.  D.  244,  250,  256. 

But  the  theory  that  a  foreign  judgment  imposes  or  creates 
a  duty  or  obligation  is  a  remnant  of  the  ancient  fiction,  assumed 
by  Blackstone,  saying  that  "upon  showing  the  judgment  once  ob- 
tained, still  in  full  force,  and  yet  unsatisfied,  the  law  immediateh 
implies  that  by  the  original  contract  of  society  the  defendant  hath 
contracted  a  debt,  and  is  bound  to  pay  it."  3  Bl.  Com.  160.  That 
fiction,  which  embraced  judgments  upon  default,  or  for  torts,  can- 
not convert  a  transaction  wanting  the  assent  of  parties  into  one 
which  necessarily  implies  it.  Louisiana  v.  Nezu  Orleans,  109  U. 
S.  285,  288.  While  the  theory  in  question  may  help  to  explain 
rules  of  pleading  which  originated  while  the  fiction  was  believed 
in,  it  is  hardly  a  sufficient  guide  at  the  present  day  in  dealing  with 
questions  of  international  law,  public  or  private,  and  of  th:  comity 
of  our  own  country,  and  of  foreign  nations.  It  might  be  safer 
to  adopt  the  maxim,  applied  to  foreign  judgments  by  Chief  Jus- 
tice Weston,  speaking  for  the  Supreme  Judicial  Court  of  Maine, 
judicium  redditur  in  invitum,  or,  as  given  by  Lord  Coke,  in  prae- 
sumptione  legis  judicium  redditur  in  invitum.  Jordan  v.  Robin- 
son, (1838)  15  Maine,  167,  168;  Co.  Lit.  248  b. 

In  Russel  v.  Smyth,  above  cited,  Baron  Parke  took  the  pre- 
caution of  adding,  "Nor  need  we  say  how  far  the  judgment  of  a 
court  of  competent  jurisdiction,  in  the  absence  of  fraud,  is  con- 
clusive upon  the  parties."  9  M.  &  W.  819.  He  could  hardly 
have  contemplated  erecting  a  rule  of  local  procedure  into  a  canon 
of  private  international  law,  and  a  substitute  for  "the  comity  of 


340  PRIVATE  INTERNATIONAL   LAW. 

nations,"  on  which,  in  an  earlier  case,  he  had  himself  relied  as  the 
ground  for  enforcing  in  England  a  right  created  by  a  law  of  a 
foreign  country,  sllivoji  v.  Furnival,  I  Cr.,  M.  &  R.  2jj,  296; 
S.  C.  4  Tyrwh.  751,  771. 

In  Abouloff  v.  Oppenheimer,  (1882)  Lord  Coleridge  and 
Lord  Justice  Brett  carefully  avoided  adopting  the  theory  of  a 
legal  obligation  to  pay  a  foreign  judgment  as  the  test  in  determin- 
ing how  far  such  a  judgment  might  be  impeached.  10  Q.  B.  D. 
295,  300,  305.  In  Hazvksford  v.  Giffard,  (1886)  in  the  Privy 
Council,  on  appeal  from  the  Royal  Court  of  Jersey,  Lord  Her- 
schell  said:  "This  action  is  brought  upon  an  English  judgment, 
which,  until  a  judgment  was  obtained  in  Jersey,  was  in  that  coun- 
try no  more  than  evidence  of  a  debt."  12  App.  Cas.  122,  126.  In 
Nonvion  v.  Freeman,  in  the  House  of  Lords,  (1889)  Lord  Her- 
schell,  while  he  referred  to  the  reliance  placed  by  counsel  on  the 
saying  of  Baron  Parke,  did  not  treat  a  foreign  judgment  as  creat- 
ing or  imposing  a  new  obligation,  but  only  as  declaring  and  es- 
tablishing that  a  debt  or  obligation  existed.  His  words  were: 
"The  principle  upon  which  I  think  our  enforcement  of  foreign 
judgments  must  proceed  is  this:  that  in  a  court  of  competent  ju- 
risdiction, where  according  to  its  established  procedure  the  whole 
merits  of  the  case  were  open,  at  all  events,  to  the  parties,  however 
much  they  may  have  failed  to  take  advantage  of  them,  or  may 
have  waived  any  of  their  rights,  a  final  adjudication  has  been 
given  that  a  debt  or  obligation  exists,  which  cannot  thereafter  in 
that  court  be  disputed,  and  can  only  be  questioned  in  an  appeal  to 
a  higher  tribunal.  In  such  a  case  it  may  well  be  said  that,  giving 
credit  to  the  courts  of  another  country,  we  are  prepared  to  take 
die  fact  that  such  adjudication  has  been  made  as  establishing  the 
existence  of  the  debt  or  obligation."  And  Lord  Bramwell  said : 
"How  can  it  be  said  that  there  is  a  legal  obligation  on  the  part  of 
a  man  to  pay  a  debt,  who  has  a  right  to  say,  'I  owe  none,  and  no 
judgment  has  established  against  me  that  I  do?'  I  cannot  see." 
The  foreign  judgment  in  that  case  was  allowed  no  force,  for  want 
of  finally  establishing  the  existence  of  a  debt.  15  App.  Cas.  1, 
9,  10,  14. 

In  view  of  all  the  authorities  upon  the  subject,  and  of  the 


JUDGMENTS.  341 

trend  of  judicial  opinion  in  this  country  and  in  England,  follow- 
ing the  lead  of  Kent  and  Story,  we  are  satisfied  that,  where  there 
has  been  opportunity  for  a  full  and  fair  trial  abroad  before  a  court 
of  competent  jurisdiction,  conducting  the  trial  upon  regular  pro- 
ceedings, after  due  citation  or  voluntary  appearance  of  the  de- 
fendant, and  under  a  system  of  jurisprudence  likely  to  secure  an 
impartial  administration  of  justice  between  the  citizens  of  its  own 
country  and  those  of  otner  countries,  and  there  is  nothing  to  show 
cither  prejudice  in  the  court,  or  in  the  system  of  laws  under  which 
it  was  sitting,  or  fraud  in  procuring  the  judgment,  or  any  other 
special  reason  why  the  comity  of  this  nation  should  not  allow  it 
full  effect,  the  merits  of  the  case  should  not,  in  an  action  brought 
in  this  country  upon  the  judgment,  be  tried  afresh,  as  on  a  new 
trial  or  an  appeal,  upon  the  mere  assertion  of  the  party  that  the 
judgment  was  erroneous  in  law  or  in  fact.  The  defendants, 
therefore,  cannot  be  permitted,  upon  that  general  ground,  to  con- 
test the  validity  or  the  effect  of  the  judgment  sued  on. 

But  they  have  sought  to  impeach  that  judgment  upon  several 
other  grounds,  which  require  separate  consideration. 

It  is  objected  that  the  appearance  and  litigation  of  the  de- 
fendants in  the  French  tribunals  were  not  voluntary,  but  by  legal 
compulsion,  and  therefore  that  the  French  courts  never  acquired 
such  jurisdiction  over  the  defendants,  that  they  should  be  held 
bound  by  the  judgment. 

Upon  the  question  what  should  be  considered  such  a  volun- 
tary appearance,  as  to  amount  to  a  submission  to  the  jurisdiction 
of  a  foreign  court,  there  has  been  some  difference  of  opinion  in 
England. 

In  General  Steam  Navigation  Co.  v.  Guillou,  (1843)  m  an 
action  at  law  to  recover  damages  to  the  plaintiff's  ship  by  a  col- 
lision with  the  defendant's  ship  through  the  negligence  of  the 
master  and  crew  of  the  latter,  the  defendant  pleaded  a  judgment 
by  which  a  French  court,  in  a  suit  brought  by  him,  and  after  the 
plaintiffs  had  been  cited,  had  appeared,  and  had  asserted  fault  on 
this  defendant's  part,  had  adjudged  that  it  was  the  ship  of  these 
plaintiffs,  and  not  that  of  this  defendant,  which  was  in  fault.  It 
was  not  shown  or  suggested  that  the  ship  of  these  plaintiffs  was 


342  PRIVATE    INTERNATIONAL  LAW. 

in  the  custody  or  possession  of  the  French  court.  Yet  Baron 
Parke,  delivering  a  considered  judgment  of  the  Court  of  Ex- 
chequer, (j^ord  Abinger  and  Barons  Alderson  and  Rolfe  concur- 
ring,) expressed  a  decided  opinion  that  the  pleas  were  bad  in  sub- 
stance, for  these  reasons:  "They  do  not  state  that  the  plaintiffs 
were  French  subjects,  or  resident,  or  even  present  in  France  when 
the  suit  began,  so  as  to  be  bound  by  reason  of  allegiance,  or  domi- 
cil,  or  temporary  presence,  by  a  decision  of  a  French  court ;  and 
they  did  not  select  the  tribunal  and  sue  as  plaintiffs ;  in  any  of 
which  cases  the  determination  might  have  possibly  bound  them. 
They  were  mere  strangers,  who  put  forward  the  negligence  of 
the  defendant  as  an  answer,  in  an  adverse  suit  in  a  foreign  coun- 
try, whose  laws  they  were  under  no  obligation  to  obey."  1 1  M. 
&  W.  877,  894;  S.  C.  13  Law  Journal  ( N.  S.)  Exch.  168,  176. 

But  it  is  now  settled  in  England  that,  while  an  appearance  by 
the  defendant  in  a  court  of  a  foreign  country,  for  the  purpose  of 
protecting  his  property  already  in  the  possession  of  that  court, 
may  not  be  deemed  a  voluntary  appearance,  yet  an  appearance 
solely  for  the  purpose  of  protecting  other  property  in  that  country 
from  seizure  is  considered  as  a  voluntary  appearance.  De  Cosse 
Brissac  v.  Rathbone,  (i860)  6  H.  &  N.  301 ;  S.  C.  20  Law  Jour- 
nal (N.  S.)  Exch.  238;  Schibsby  v.  IVestcnhote,  (1870)  L.  R.  6 
Q.  B.  155,  162;  Voinet  v.  Barrett,  (1885)  1  Cab.  &  El.  554;  S. 
C.  54  Law  Journal  (N.  S.)  Q.  B.  521,  and  55  Law  Journal  (N. 
S.)  Q.  B.  39- 

The  present  case  is  not  one  of  a  person  traveling  through  or 
casually  found  in  a  foreign  country.  The  defendants,  although 
they  were  not  citizens  or  residents  of  France,  but  were  citizens 
and  residents  of  the  State  of  New  York,  and  their  principal  place 
of  business  was  in  the  city  of  New  York,  yet  had  a  storehouse 
and  an  agent  in  Paris,  and  were  accustomed  to  purchase  large 
quantities  of  goods  there,  although  they  did  not  make  sales  in 
France.  Under  such  circumstances,  evidence  that  their  sole  ob- 
ject in  appearing  and  carrying  on  the  litigation  in  the  French 
courts  was  to  prevent  property,  in  their  storehouse  at  Paris,  be- 
longing to  them,  and  within  the  jurisdiction,  but  not  in  the  cus- 
tody, of  those   courts,  from  being   taken  in   satisfaction    of  any 


JUDGMENTS.  343 

judgment  that  might  be  recovered  against  them,  would  not,  ac- 
cording to  our  law,  show  that  those  courts  did  not  acquire  juris- 
diction of  the  persons  of  the  defendants. 

It  is  next  objected  that  in  those  courts  one  of  the  plaintiffs 
was  permitted  to  testify  not  under  oath,  and  was  not  subjected 
to  cross-examination  by  the  opposite  party,  and  that  the  defend- 
ants were,  therefore,  deprived  of  safeguards  which  are  by  our 
law  considered  essential  to  secure  honesty  and  to  detect  fraud  in 
a  witness ;  and  also  that  documents  and  papers  were  admitted  in 
evidence,  with  which  the  defendants  had  no  connection,  and  which 
would  not  be  admissible  under  our  own  system  of  jurisprudence. 
But  it  having  been  shown  by  the  plaintiffs,  and  hardly  denied  by 
the  defendants,  that  the  practice  followed  and  the  method  of  ex- 
amining witnesses  were  according  to  the  laws  of  France,  we  are 
not  prepared  to  hold  that  the  fact  that  the  procedure  in  these  re- 
fpects  differed  from  that  of  our  own  courts  is,  of  itself,  a  sufficient 
ground  for  impeaching  the  foreign  judgment. 

It  is  also  contended  that  a  part  of  the  plaintiffs'  claim  is  af- 
fected by  one  of  the  contracts  between  the  parties  having  been 
made  in  violation  of  the  revenue  laws  of  the  United  States,  requir- 
ing goods  to  be  invoiced  at  their  actual  market  value.  Rev.  Stat. 
§  2854.  It  may  be  assumed  that,  as  the  courts  of  a  country  will 
not  enforce  contracts  made  abroad  in  evasion  or  fraud  of  its  own 
laws,  so  they  will  not  enforce  a  foreign  judgment  upon  such  a 
contract.  Armstrong  v.  Toler,  11  Wheat.  258;  De  Brimont  v. 
Pciuiiman,  10  Blatchford,  436;  Lang  v.  Holbrook,  Crabbe,  179; 
Story's  Conflict  of  Laws,  §§  244,  246;  Wharton's  Conflict  of 
Laws,  §  656.  But  as  this  point  does  not  affect  the  whole  claim 
in  this  case,  it  is  sufficient,  for  present  purposes,  to  say  that  there 
does  not  appear  to  have  been  any  distinct  offer  to  prove  that  the 
invoice  value  of  any  of  the  goods  sold  by  the  plaintiffs  to  the  de- 
fendants was  agreed  between  them  to  be,  or  was,  in  fact,  lower 
than  the  actual  market  value  of  the  goods. 

It  must,  however,  always  be  kept  in  mind  that  it  is  the  par- 
amount duty  of  the  court,  before  which  any  suit  is  brought,  to 
see  to  it  that  the  parties  have  had  a  fair  and  impartial  trial,  before 
a  final  decision  is  rendered  against  either  party. 


344  PRIVATE    INTERNATIONAL  LAW. 

When  an  action  is  brought  in  a  court  of  this  country,  by  a 
citizen  of  a  foreign  country  against  one  of  our  own  citizens,  to 
recover  a  sum  of  money  adjudged  by  a  court  of  that  country  to 
be  due  from  the  defendant  to  the  plaintiff,  and  the  foreign  judg- 
ment appears  to  have  been  rendered  by  a  competent  court,  having 
jurisdiction  of  the  cause  and  of  the  parties,  and  upon  due  allega- 
tions and  proofs,  and  opportunity  to  defend  against  them,  and  its 
proceedings  are  according  to  the  course  of  a  civilized  jurispru- 
dence, and  are  stated  in  a  clear  and  formal  record,  the  judgment 
is  prima  facie  evidence,  at  least,  of  the  truth  of  the  matter  ad- 
judged; and  it  should  be  held  conclusive  upon  the  merits  tried  in 
the  foreign  court,  unless  some  special  ground  is  shown  for  im- 
peaching the  judgment,  as  by  showing  that  it  was  affected  by 
fraud  or  prejudice,  or  that,  by  the  principles  of  international  law, 
and  by  the  comity  of  our  own  country,  fit  should  not  be  given  full 
credit  and  effect. 

There  is  no  doubt  that  both  in  this  country,  as  appears  by  the 
authorities  already  cited,  and  in  England,  a  foreign  judgmem  may 
be  impeached  for  fraud. 

Shortly  before  the  Declaration  of  Independence,  the  House 
of  Lords,  upon  the  trial  of  the  Duchess  of  Kingston  for  bigamy, 
put  to  the  judges  the  question  whether — assuming  a  sentence  of 
the  ecclesiastical  court  against  a  marriage,  in  a  suit  for  jactitation 
oi  marriage,  to  be  conclusive  evidence  so  as  to  prevent  the  coun- 
sel for  the  Crown  from  proving  the  marriage  upon  an  indictment 
for  polygamy — "the  counsel  for  the  Crown  may  be  admitted  to 
avoid  the  effect  of  such  sentence,  by  proving  the  same  to  have 
been  obtained  by  fraud  or  collusion."  Chief  Justice  De  Grey,  de- 
livering the  opinion  of  the  judges,  which  was  adopted  by  the 
House  of  Lords,  answering  this  question  in  the  affirmative,  said : 
"But  if  it  was  a  direct  and  decisive  sentence  upon  the  point,  and, 
as  it  stands,  to  be  admitted  as  conclusive  evidence  upon  the  court, 
and  not  to  be  impeached  from  within ;  yet,  like  all  other  acts  of  the 
highest  judicial  authority,  it  is  impeachable  from  without ;  al- 
though it  is  not  permitted  to  show  that  the  court  was  mistaken,  it 
may  be  shown  that  they  were  misled,  rraud  is  an  intrinsic  col- 
lateral act ;  which  vitiates  the  most  solemn  proceedings  of  courts 


JUDGMENTS.  345 

of  justice.  Lord  Coke  says,  it  avoids  all  judicial  acts,  ecclesias- 
tical or  temporal."  20  Howell's  State  Trials,  537,  543,  note; 
£  C.  in  2  Smith's  Lead.  Cas. 

All  the  subsequent  English  authorities  concur  in  holding  that 
any  foreign  judgment,  whether  in  rem  or  in  personam,  may  be 
impeached  upon  the  ground  that  it  was  fraudulently  obtained. 
White  v.  Hall,  (1806)  12  Ves.  321,  324;  Bowles  v.  Orr,  (1835) 
1  Yo.  &  Col.  Exch.  464,  473;  Price  v.  Dcivhurst,  (1837)  8  Sim. 
279,  302-305 ;  Don  v.  Lippmann,  ( 1837)  5  CI.  &  Fin.  1,  20;  Bank 
of  Australasia  v.  Nias,  (1851)  16  Q.  B.  717,  735;  Reimers  v. 
Drucc,  (1856)  23  Beavan,  145,  150;  Castrique  v.  Imrie,  (1870) 
L.  R.  4  H.  L.  414,  445,  446;  Godard  v.  Gray,  (1870)  L.  R.  6  Q. 
B.  139,  149;  Messina  v.  Petrococchino,  (1872)  L.  R.  4  P.  C.  144, 
157;  Ochsenbein  v.  Papelier,  (1873)  L.  R.  8  Ch.  695. 

Under  what  circumstances  this  may  be  done  does  not  appear 
to  have  ever  been  the  subject  of  judicial  investigation  in  this 
country. 

It  has  often,  indeed,  been  declared  by  this  court  that  the 
fraud  which  entitles  a  party  to  impeach  the  judgment  of  one  of 
our  own  tribunals  must  be  fraud  extrinsic  to  the  matter  tried  in 
the  cause,  and  not  merely  consist  in  false  and  fraudulent  docu- 
ments or  testimony  submitted  to  that  tribunal,  and  the  truth  of 
which  was  contested  before  it  and  passed  upon  by  it.  United 
States  v.  Throckmorton,  98  U.  S.  61,  65,  66;  Vance  v.  Burbank, 
101  U.  S.  514,  519;  Steel  v.  Smelting  Co.,  106  U.  S.  447,  453; 
Moffat  v.  United  States,  112  U.  S.  24,  32 ;  United  States  v.  Minor, 
1 14  U.  S.  233,  242.  And  in  one  English  case,  where  a  ship  had 
been  sold  under  a  foreign  judgment,  the  like  restriction  upon  im- 
peaching that  judgment  for  fraud  was  suggested;  but  the  deci- 
sion was  finally  put  upon  the  ground  that  the  judicial  sale  passed 
the  title  to  the  ship.  Cammell  v.  Sezvell,  (1858-60)  3  H.  &  N. 
6i7,  646;  5  H.  &  N.  728,  729,  742. 

But  it  is  now  established  in  England,  by  well  considered  and 
strongly  reasoned  decisions  of  the  Court  of  Appeal,  that  foreign 
judgments  may  be  impeached,  if  procured  by  false  and  fraudulent 
representations  and  testimony   of  the  plaintiff,  even  if    the  same 


346  PRIVATE   INTERNATIONAL  LAW. 

question  of  fraud  was  presented  to  and  decided  by  the  foreign 
court. 

In  Abouloff  v.  Oppenheimer,  (1882)  the  plaintiff  had  recov- 
ered a  judgment  at  Tiflis  in  Russia,  ordering  the  defendants  to 
return  certain  goods  or  to  pay  their  value.  The  defendants  ap- 
pealed to  a  higher  Russian  court,  which  confirmed  the  judgment, 
and  ordered  the  defendants  to  pay,  besides  the  sum  awarded  be- 
low, an  additional  sum  for  costs  and  expenses.  In  an  action  in 
the  English  High  Court  of  Justice  upon  those  judgments,  the  de- 
fendants pleaded  that  they  were  obtained  by  the  gross  fraud  of 
the  plaintiff,  in  fraudulently  representing  to  the  Russian  courts 
that  the  goods  in  question  were  not  in  her  possession  when  the 
suit  was  commenced,  and  when  the  judgment  was  given,  and  dur- 
ing the  whole  time  thv;  suit  was  pending ;  and  by  fraudulently  con- 
cealing from  those  courts  the  fact  that  those  goods,  as  the  fact 
was,  and  as  she  well  knew,  were  in  her  actual  possession.  A  de- 
murrer to  this  plea  was  overruled,  and  judgment  entered  for  the 
defendants.  And  that  judgment  was  affirmed  in  the  Court  of 
Appeal  by  Lord  Chief  Justice  Coleridge,  Lord  Justice  Baggallay 
and  Lord  Justice  Brett,  all  of  whom  delivered  concurring  opin- 
ions, the  grounds  of  which  sufficiently  appear  in  the  opinion  de- 
livered by  Lord  Justice  Brett  (since  Lord  Esher,  Master  of  the 
Rolls),  who  said:  "With  regard  to  an  action  brought  upon  a  for- 
eign judgment,  the  whole  doctrine  as  to  fraud  is  English,  and  is 
to  be  applied  in  an  action  purely  English.  I  am  prepared  to  hold, 
according  to  the  judgment  of  the  House  of  Lords  adopting  the 
proposition  laid  down  by  De  Grey,  C.  J.,  that  if  the  judgment  upon 
which  the  action  is  brought  was  procured  from  the  foreign  court 
by  the  successful  fraud  of  the  party  who  is  seeking  to  enforce  it, 
the  action  in  the  English  court  will  not  lie.  This  proposition  is 
absolute  and  without  any  limitation,  and,  as  the  Lord  Chief  Jus- 
tice has  pointed  out,  is  founded  on  the  doctrine  that  no  party  in 
an  English  court  shall  be  able  to  take  advantage  of  his  own 
wrongful  act,  or,  as  it  may  be  state.d  in  other  language,  that  no 
obligation  can  be  enforced  in  an  English  court  of  justice  which 
has  been  procured  by  the  fraud  of  the  person  relying  upon  it  as  an 
obligation."     "I  will  assume  that  in  the  suit  in  the  Russian  courts 


JUDGMENTS.  347 

the  plaintiff's  fraud  was  alleged  by  the  defendants,  and  that  they 
gave  evidence  in  support  of  the  charge.  I  will  assume  even  that 
the  defendants  gave  the  very  same  evidence  which  they  propose  to 
adduce  in  this  action ;  nevertheless  the  defendants  will  not  be  de- 
barred at  the  trial  of  this  action  from  making  the  same  charge  of 
fraud  and  from  adducing  the  same  evidence  in  support  of  it;  and 
if  the  High  Court  of  Justice  is  satisfied  that  the  allegations  of  the 
defendants  are  true,  and  that  the  fraud  was  committed,  the  de- 
fendants will  be  entitled  to  succeed  in  the  present  action.  It  has 
been  contended  that  the  same  issue  ought  not  to  be  tried  in  an 
English  court  which  was  tried  in  the  Russian  courts ;  but  I  agree 
that  the  question  whether  the  Russian  courts  were  deceived  never 
could  be  an  issue  in  the  action  tried  before  them."  "In  the  pres- 
ent case,  we  have  had  to  consider  the  question  fully ;  and,  accord- 
ing to  the  best  opinion  which  I  can  form,  fraud  committed  by  a 
party  to  a  suit,  for  the  purpose  of  deceiving  a  foreign  court,  is  a 
defense  to  an  action  in  this  country,  founded  upon  the  judgment 
cf  that  foreign  court.  It  seems  to  me  that  if  we  were  to  accede 
to  the  argument  for  the  plaintiff,  the  result  would  be  that  a  plaus- 
ible deceiver  would  succeed,  whereas  a  deceiver  who  is  not  plaus- 
ible would  fail.  I  cannot  think  that  plausible  fraud  ought  to  be 
upheld  in  any  court  of  justice  in  England.  I  accept  the  whole 
doctrine,  without  any  limitation,  that  whenever  a  foreign  judg- 
ment has  been  obtained  by  the  fraud  of  the  party  relying  upon  it, 
it  cannot  be  maintained  in  the  courts  of  this  country ;  and  further, 
that  nothing  ought  to  persuade  an  English  court  to  enforce  a 
judgment  against  one  party,  which  has  been  obtained  by  the  fraud 
of  the  other  party  to  the  suit  in  the  foreign  court."  10  Q.  B.  295, 
305-308. 

The  same  view  was  affirmed  and  acted  on  in  the  same  court 
by  Lords  Justices  Lindley  and  Bowen  in  Vadala  v.  Lawes,  ( 1890) 
25  Q.  B.  D.  310,  317-320,  and  by  Lord  Esher  and  Lord  Justice 
Lopes  in  Crosat  v.  Brogden,  (1894)  2  Q.  B.  30,  34,  35. 

In  the  case  at  bar,  the  defendants  offered  to  prove,  in  much 
detail,  that  the  plaintiffs  presented  to  the  French  court  of  first  in- 
stance and  to  the  arbitrator  appointed  by  that  court,  and  upon 
whose  report  its  judgment  was  largely  based,  false  and  fraudulent 


348  PRIVATE    INTERNATIONAL  LAW. 

statements  and  accounts  against  the  defendants,  by  which  the  ar- 
bitrator and  the  French  courts  were  deceived  and  misled,  and  their 
judgments  were  based  upon  such  false  and  fraudulent  statements 
and  accounts.  This  offer,  if  satisfactorily  proved,  would,  accord- 
ing to  the  decisions  of  the  English  Court  of  Appeal  in  Abouloff  v. 
Oppenheimer,  Vadala  v.  Lowes,  and  Crozat  v.  Brogden,  above 
cited,  be  a  sufficient  ground  for  impeaching  the  foreign  judgment, 
and  examining  into  the  merits  of  the  original  claim. 

But  whether  those  decisions  can  be  followed  in  regard  to  for- 
eign judgments,  consistently  with  our  own  decisions  as  to  im- 
peaching domestic  judgments  for  fraud,  it  is  unnecessary  in  this 
case  to  determine,  because  there  is  a  distinct  and  independent 
ground  upon  which  we  are  satisfied  that  the  comity  of  our  nation 
does  not  require  us  to  give  conclusive  effect  to  the  judgments  of 
the  courts  of  France ;  and  that  ground  is,  the  want  of  reciprocity, 
on  the  part  of  France,  as  to  the  effect  to  be  given  to  the  judgments 
of  this  and  other  foreign  countries. 

In  France,  the  Royal  Ordinance  of  June  15,  1629,  art.  121, 
provided  as  follows :  "Judgments  rendered,  contracts  or  obliga- 
tions recognized,  in  foreign  kingdoms  and  sovereignties,  for  any 
cause  whatever,  shall  have  no  lien  or  execution  in  our  kingdom. 
Thus  the  contracts  shall  stand  for  simple  promises ;  and,  notwith- 
standing the  judgments,  our  subjects  against  whom  they  have 
been  rendered  may  contest  their  rights  anew  before  our  judges." 
Touillier,  Droit  Civil,  lib.  3,  tit.  3,  c.  6,  sect.  3,  no.  yj. 

By  the  French  Code  of  Civil  Procedure,  art.  546,  "Judg- 
ments rendered  by  foreign  tribunals,  and  acts  acknowledged  be- 
fore foreign  officers,  shall  not  be  capable  of  execution  in  France, 
except  in  the  manner  and  in  the  cases  provided  by  articles  2123 
and  2128  of  the  Civil  Code,"  which  are  as  follows:  By  article 
2123,  "A  lien  cannot  arise  from  judgments  rendered  in  a  foreign 
country,  except  so  far  as  they  have  been  declared  executory  by  a 
French  tribunal;  without  prejudice  to  provisions  to  the  contrary 
which  may  exist  in  public  laws  and  treaties."  By  article  2128, 
"Contracts  entered  into  in  a  foreign  country  cannot  give  a  lien 
upon  property  in  France,  if  there  are  no  provisions  contrary  to 


JUDGMENTS.  349 

this  principle  in  public  laws  or  in  treaties."     Touillier,  ub.  sup. 
no.  84. 

The  defendants,  in  their  answer,  cited  the  above  provisions 
of  the  statutes  of  France,  and  alleged,  and  at  the  trial  offered  to 
prove,  that,  by  the  construction  given  to  these  statutes  by  the  ju- 
dicial tribunals  of  France,  when  the  judgments  of  tribunals  of 
foreign  countries  against  the  citizens  of  France  are  sued  upon  in 
the  courts  of  France,  the  merits  of  the  controversies  upon  which 
those  judgments  are  based  are  examined  anew,  unless  a  treaty  to 
the  contrary  effect  exists  between  the  Republic  of  France  and  the 
country  in  which  such  judgment  is  obtained,  (which  is  not  the  case 
between  the  Republic  of  France  and  the  United  States,)  and  that 
the  tribunals  of  the  Republic  of  France  give  no  force  and  effect, 
within  the  jurisdiction  of  that  country,  to  the  judgments  duly  ren- 
dered by  courts  of  competent  jurisdiction  of  the  United  States 
against  citizens  of  France  after  proper  personal  service  of  the 
process  of  those  courts  has  been  made  thereon  in  this  country. 
We  are  of  opinion  that  this  evidence  should  have  been  admitted. 

In  Odzvin  v.  Forbes,  (1817)  President  Henry,  in  the  Court 
of  Demerara,  which  was  governed  by  the  Dutch  law,  and  was,  as 
he  remarked,  "a  tribunal  foreign  to  and  independent  of  that  of 
England,"  sustained  a  plea  of  an  English  certificate  in  bankrupt- 
cy, upon  these  grounds:  "It  is  a  principle  of  their  law,  and  laid 
down  particularly  in  the  ordinances  of  Amsterdam,"  "that  the 
same  law  shall  be  exercised  towards  foreigners  in  Amsterdam  as 
is  exercised  with  respect  to  citizens  of  that  State  in  other  coun- 
tries ;  and  upon  this  principle  of  reciprocity,  which  is  not  confined 
to  the  city  of  Amsterdam,  but  pervades  the  Dutch  laws,  they  have 
always  given  effect  to  the  laws  of  that  country  which  has  exer- 
cised the  same  comity  and  indulgence  in  admitting  theirs."  "That 
the  Dutch  bankrupt  laws  proceed  on  the  same  principles  as  those 
of  the  English ;  that  the  English  tribunals  give  effect  to  the  Dutch 
bankrupt  laws ;  and  that,  on  the  principle  of  reciprocity  and  mu- 
tual comity,  the  Dutch  tribunals,  according  to  their  own  ordi- 
nances, are  bound  to  give  effect  to  the  English  bankrupt  laws 
when  duly  proved,  unless  there  is  any  express  law  or  ordinance 
prohibiting  their  admission."     And  his  judgment  was  affirmed  in 


350  PRIVATE   INTERNATIONAL  LAW. 

the  Privy  Council  on  Appeal.  Case  of  Odzvin  v.  Forbes,  pp.  89, 
159-161,  173-176;  5.  C.  (1818)  Buck  Bankr.  Cas.  57,  64. 

President  Henry,  at  page  76  of  his  Treatise  on  Foreign  Law, 
published  as  a  preface  to  his  report  of  that  case,  said :  "This  com- 
ity, in  giving  effect  to  the  judgments  of  other  tribunals,  is  gener- 
ally exercised  by  States  under  the  same  sovereign,  on  the  ground 
that  he  is  the  fountain  of  justice  in  each  though  of  independent 
jurisdiction ;  and  it  has  also  been  exercised  in  different  States  of 
Europe  with  respect  to  foreign  judgments,  particularly  in  the 
Dutch  States,  who  are  accustomed  by  the  principle  of  reciprocity 
to  give  effect  in  their  territories  to  the  judgments  of  foreign 
States,  which  show  the  same  comity  to  theirs ;  but  the  tribunals  of 
France  and  England  have  never  exercised  this  comity  to  the  de- 
gree that  those  of  Holland  have,  but  always  required  a  fresh  ac- 
tion to  be  brought,  in  which  the  foreign  judgment  may  be  given 
«n  evidence.  As  this  is  a  matter  of  positive  law  and  internal  pol- 
icy in  each  State,  no  opinion  need  be  given ;  besides,  it  is  a  mere 
question  of  comity,  and  perhaps  it  might  be  neither  politic  nor 
prudent,  in  two  such  great  States,  to  give  indiscriminate  effect  to 
the  judgment  of  each  other's  tribunals,  however  the  practice  might 
be  proper  or  convenient  in  federal  States,  or  those  under  the  same 
sovereign." 

It  was  that  statement,  which  appears  to  have  called  forth  the 
observations  of  Mr.  Justice  Story,  already  cited :  "Holland  seems 
at  all  times,  upon  the  general  principle  of  reciprocity,  to  have 
given  great  weight  to  foreign  judgments,  and  in  many  cases,  if 
not  in  all  cases,  to  have  given  to  them  a  weight  equal  to  that  given 
to  domestic  judgments,  wherever  the  like  rule  of  reciprocity  with 
regard  to  Dutch  judgments  has  been  adopted  by  the  foreign  coun- 
try whose  judgment  is  brought  under  review.  This  is  certainly 
a  very  reasonable  rule,  and  may  perhaps  hereafter  work  itself 
firmly  into  the  structure  of  international  jurisprudence."  Story's 
Conflict  of  Laws,  §  618. 

This  rule,  though  never  either  affirmed  or  denied  by  express 
adjudication  in  England  or  America,  has  been  indicated,  more  or 
less  distinctly,  in  several  of  the  authorities  already  cited. 

Lord  Hardwicke  threw  out  a  suggestion  that  the  credit  to  be 


JUDGMENTS.  351 

given  by  one  court  to  the  judgment  of  a  foreign  court  might  well 
be  affected  by  "their  proceeding  both  by  the  same  rules  of  law." 
Otovay  v.  Ramsay,  4  B.  &  C.  414-416,  note. 

Lord  Eldon,  after  saying  that  "natural  law"  (evidently  in- 
tending the  law  of  nations)  "requires  the  courts  of  this  country 
to  give  credit  to  those  of  another  for  the  inclination  and  power  to 
do  justice,"  added  that  "if  it  appears  in  evidence,  that  persons  su- 
ing under  similar  circumstances  neither  had  met,  nor  could  meet, 
with  justice,  that  fact  cannot  be  immaterial  as  an  answer  to  the 
presumption."     Wright  v.  Simpson,  6  Ves.  714,  730. 

Lord  Brougham,  presiding  as  Lord  Chancellor  in  the  House 
of  Lords,  said  :  "The  law  in  the  course  of  procedure  abroad  some- 
times differs  so  mainly  from  ours  in  the  principles  upon  which  ii 
is  bottomed,  that  it  would  seem  a  strong  thing  to  hold  that  our 
courts  were  bound  conclusively  to  give  execution  to  the  sentence 
of  foreign  courts,  when,  for  aught  we  know,  there  is  not  any  one 
of  those  things  which  are  reckoned  the  elements  or  the  corner 
stones  of  the  due  administration  of  justice,  present  to  the  pro- 
cedure in  these  foreign  courts."  Houlditch  v.  Donegal,  8  Bligh, 
N.  R.  301,  338. 

Chief  Justice  Smith,  of  New  Hampshire,  in  giving  reasons 
why  foreign  judgments  or  decrees,  founded  on  the  municipal  laws 
of  the  State  in  which  they  are  pronounced,  are  not  conclusive  evi- 
dence of  debt,  but  prima  facie  evidence  only,  said:  "These  laws 
and  regulations  may  be  unjust,  partial  to  citizens,  and  against  for- 
eigners ;  they  may  operate  injustice  to  our  citizens,  whom  we  are 
bound  to  protect ;  they  may  be,  and  the  decisions  of  courts  found- 
ed on  them,  just  cause  of  complaint  against  the  supreme  power  of 
the  State  where  rendered.  To  adopt  them  is  not  merely  saying 
that  the  courts  have  decided  correctly  on  the  law,  but  it  is  appro- 
bating the  law  itself."     Bryant  v.  Ela,  Smith  (N.  H.)  396,  404. 

Mr.  Justice  Story  said:  "If  a  civilized  nation  seeks  to  have 
the  sentences  of  its  own  courts  held  of  any  validity  elsewhere,  they 
ought  to  have  a  just  regard  to  the  rights  and  usages  of  other  civi- 
lized nations,  and  the  principles  of  public  and  national  law  in  the 
administration  of  justice."  Bradstreet  v.  Neptune  Ins.  Co.,  3 
Sumner,  600,  608. 


352  PRIVATE   INTERNATIONAL  LAW. 

Mr.  Justice  Woodbury  said  that  judgments  in  personam,  ren- 
dered under  a  foreign  government,  "are,  ex  comitate,  treated  with 
respect,  according  to  the  nature  of  the  judgment,  and  the  charac- 
ter of  the  tribunal  which  rendered  it,  and  the  reciprocal  mode,  if 
any,  in  which  that  government  treats  our  judgments;"  and  added, 
"Nor  can  much  comity  be  asked  for  the  judgments  of  another  na- 
tion, which,  like  France,  pays  no  respect  to  those  of  other  coun- 
tries."    Bnrnham  v.  Webster,  i  Woodb.  &  Min.  172,  175,  179. 

Mr.  Justice  Cooley  said,  "True  comity  is  equality ;  we 
should  demand  nothing  more,  and  concede  nothing  less."  Mc- 
Ezcan  v.  Zimmer,  38  Michigan,  765,  769. 

Mr.  Wheaton  said:  "There  is  no  obligation,  recognized  by 
legislators,  public  authorities,  and  publicists,  to  regard  foreign 
laws ;  but  their  application  is  admitted  only  from  considerations 
of  utility  and  the  mutual  convenience  of  States — ex  comitate,  ob 
reciprocam  utilitatem."  "The  general  comity,  utility  and  conve- 
nience of  nations  have,  however,  established  a  usage  among  most 
civilized  States,  by  which  the  final  judgments  of  foreign  courts  of 
competent  jurisdiction  are  reciprocally  carried  into  execution." 
Wheaton's  International  Law,  (8th  ed.)  §§  79,  147. 

Since  Story,  Kent  and  Wheaton  wrote  their  commentaries, 
many  books  and  essays  have  been  published  upon  the  subject  of 
the  effect  to  be  allowed  by  the  courts  of  one  country  to  the  judg- 
ments of  another,  with  references  to  the  statutes  and  decisions  in 
various  countries.  Among  the  principal  ones  are  Foelix,  Droit 
International  Prive,  (4th  ed.)  by  Demangeat,  1866)  lib.  2,  tits. 
7,  8;  Moreau,  Effets  Internationaux  des  Jugements  (1884)  ;  Pig- 
gott,  on  Foreign  Judgments  (2d  ed.  1884)  ;  Constant,  de  l'Exe- 
cution  des  Jugements  Etrangers  (2d  ed.  1890),  giving  the  text 
of  the  articles  of  most  of  the  modern  codes  upon  the  subject,  and 
of  French  treaties  with  Italian,  German  and  Swiss  States ;  and 
numerous  papers  in  Clunet's  Journal  de  Droit  International  Prive, 
established  in  1874,  and  continued  to  the  present  time.  For  the 
reasons  stated  at  the  outset  of  this  opinion,  we  have  not  thought 
it  important  to  state  the  conflicting  theories  of  continental  com- 
mentators and  essayists  as  to  what  each  may  think  the  law  ought 
to  be ;  but  have  referred  to  their  works  only  for  evidence  of  au- 


JUDGMENTS.  353 

thoritative  declarations,  legislative  or  judicial,  of  what  the  law  is. 

By  the  law  of  France,  settled  by  a  series  of  uniform  decisions 
of  the  Court  of  Cassation,  the  highest  judicial  tribunal,  for  more 
than  half  a  century,  no  foreign  judgment  can  be  rendered  execu- 
tory in  France  without  a  review  of  the  judgment  au  fond — to  the 
bottom,  including  the  whole  merits  of  the  cause  of  action  on  which 
the  judgment  rests.  Pardessus,  Droit  Commercial,  §  1488 ;  Bard, 
Precis  de  Droit  International,  (1883)  nos.  234-239;  Story's  Con- 
flict of  Laws,  §§  615-617;  Piggott,  452;  Westlake  on  Private  In- 
ternational Law,  (3d  ed.  1890)  350. 

A  leading  case  was  decided  by  the  Court  of  Cassation  on 
April  19,  1819,  and  was  as  follows :  A  contract  of  partnership  was 
made  between  Holker,  a  French  merchant,  and  Parker,  a  citizen 
of  the  United  States.  Afterwards,  and  before  the  partnership  ac- 
counts were  settled;  Parker  came  to  France,  and  Holker  sued  him 
in  the  Tribunal  of  Commerce  of  Paris.  Parker  excepted,  on  the 
ground  that  he  was  a  foreigner,  not  domiciled  in  France ;  and  ob- 
tained a  judgment,  affirmed  on  appeal,  remitting  the  matter  to  the 
American  courts — obtint  son  renvoi  devant  les  tribunaux  Ameri- 
cains.  Holker  then  sued  Parker  in  the  Circuit  Court  of  the  Uni- 
ted States  for  the  District  of  Massachusetts,  and  in  1814  obtained 
a  judgment  there,  ordering  Parker  to  pay  him  $529,949.  (One 
branch  of  the  controversy  had  been  brought  before  this  court  in 
1813.  Holker  v.  Parker,  7  Cranch,  436.)  Holker,  not  being  able 
to  obtain  execution  of  that  judgment  in  America,  because  Parker 
had  no  property  there  and  continued  to  reside  in  Paris,  obtained 
from  a  French  judge  an  order  declaring  the  judgment  executory. 
Upon  Parker's  application  to  nullify  the  proceeding,  the  Royal 
Court  of  Paris,  reversing  the  judgment  of  a  lower  court,  set  aside 
that  order,  assigning  these  reasons:  "Considering  that  judgments 
rendered  by  foreign  courts  have  neither  effect  nor  authority  in 
France ;  that  this  rule  is  doubtless  more  particularly  applicable  in 
favor  of  Frenchmen,  to  whom  the  King  and  his  officers  owe  a 
special  protection ;  but  that  the  principle  is  absolute,  and  may  be 
invoked  by  all  persons  without  distinction,  being  founded  on  the 
independence  of  States ;  that  the  Ordinance  of  1629,  in  the  begin- 
ning of  its  article  131,  lays  down  the  principle  in  its  generality, 


354  PRIVATE    INTERNATIONAL   LAW. 

when  it  says  that  judgments  rendered  in  foreign  kingdoms  and 
sovereignties,  for  any  cause  whatever,  shall  have  no  execution  in 
the  kingdom  of  France;  and  that  the  Civil  Code,  art.  2123,  gives 
to  this  principle  the  same  latitude,  when  it  declares  that  a  lien  can- 
not result  from  judgments  rendered  in  a  foreign  country,  except 
so  far  as  they  have  been  declared  executory  by  a  French  tribunal 
— which  is  not  a  matter  of  mere  form,  like  the  granting  in  past 
times  of  a  pareatis  from  one  department  to  another  for  judgments 
rendered  within  the  kingdom ;  but  which  assumes,  on  the  part  of 
the  French  tribunals,  a  cognizance  of  the  cause,  and  a  full  exami- 
nation of  the  justice  of  the  judgment  presented  for  execution,  as 
reason  demands,  and  this  has  always  been  practised  in  France,  ac- 
cording to  the  testimony  of  our  ancient  authorities;  that  there 

• 

may  result  from  this  an  inconvenience,  where  the  debtor,  as  is  as- 
serted to  have  happened  in  the  present  case,  removes  his  property 
and  his  person  to  France,  while  keeping  his  domicil  in  his  native 
country ;  that  it  is  for  the  creditor  to  be  watchful,  but  that  no  con- 
sideration can  impair  a  principle  on  which  rests  the  sovereignty 
of  governments,  and  which,  whatever  be  the  case,  must  preserve 
its  whole  force."  The  court  therefore  adjudged  that,  before  the 
tribunal  of  first  instance,  Holker  should  state  the  grounds  of  his 
action,  to  be  contested  by  Parker,  and  to  be  determined  by  the 
court  upon  cognizance  of  the -whole  cause.  That  judgment  was 
confirmed,  upon  deliberate  consideration,  by  the  Court  of  Cassa- 
tion, for  the  reasons  that  the  Ordinance  of  1629  enacted,  in  abso- 
lute terms  and  without  exception,  that  foreign  judgments  should 
not  have  execution  in  France ;  that  it  was  only  by  the  Civil  Code 
and  the  Code  of  Civil  Procedure  that  the  French  tribunals  had 
been  authorized  to  declare  them  executory ;  that  therefore  the  Or- 
dinance of  1629  had  no  application ;  that  the  articles  of  the  Codes, 
referred  to,  did  not  authorize  the  courts  to  declare  judgments,  ren- 
dered in  a  foreign  country,  executory  in  France  without  examina- 
tion ;  that  such  an  authorization  would  be  as  contrary  to  the  insti- 
tution of  the  courts,  as  would  be  the  award  or  the  refusal  of  exe- 
cution arbitrarily  and  at  will ;  would  impeach  the  right  of  sover- 
eignty of  the  French  government,  and  was  not  in  the  intention  of 
the  legislature;  and  that  the  Codes  made  no  distinction  between 


JUDGMENTS.  355 

different  judgments  rendered  in  a  foreign  country,  and  permitted 
the  judges  to  declare  them  all  executory;  and  therefore  those 
judgments,  whether  against  a  Frenchman  or  against  a  foreigner, 
were  subject  to  examination  on  the  merits.  Holker  v.  Parker, 
Merlin,  Questions  de  Droit,  Jugement,  §  14,  no.  2. 

The  Court  of  Cassation  has  ever  since  constantly  affirmed 
the  same  view.  Moreau,  no.  106,  note,  citing  many  decisions; 
Clunet,  1882,  p.  166.  In  Clunet,  1894,  p.  913,  note,  it  is  said  to 
be  "settled  by  judicial  decisions — il  est  de  jurisprudence — that  the 
French  courts  are  bound,  in  the  absence  of  special  diplomatic 
treaties,  to  proceed  to  the  revision  on  the  whole  merits — an  fond 
— of  foreign  judgments,  execution  of  which  is  demanded  of 
them,"  citing,  among  other  cases,  a  decision  of  the  Court  of  Cassa- 
tion on  February  2,  1892,  by  which  it  was  expressly  held  to  result 
from  the  articles  of  the  Codes,  above  cited,  "that  judgments  ren- 
dered, in  favor  of  a  foreigner  against  a  Frenchman,  by  a  foreign 
court,  are  subject,  when  execution  of  them  is  demanded  in  France, 
to  the  revision  of  the  French  tribunals,  which  have  the  right  and 
the  duty  to  examine  them,  both  as  to  the  form,  and  as  to  the 
merits."     Sirey,  1892,  1,  201. 

In  Belgium,  the  Code  of  Civil  Procedure  of  1876  provides 
that  if  a  treaty  on  the  basis  of  reciprocity  be  in  existence  between 
Belgium  and  the  country  in  which  the  foreign  judgment  has  been 
given,  the  examination  of  the  judgment  in  the  Belgian  courts  shall 
bear  only  upon  the  questions  whether  it  "contains  nothing  con- 
trary to  public  order,  to  the  principles  of  the  Belgian  public  or- 
der ;"  whether,  by  the  law  of  the  country  in  which  it  was  rendered, 
it  has  the  force  of  res  judicata;  whether  the  copy  is  duly  authenti- 
cated ;  whether  the  defendant's  rights  have  been  duly  respected ; 
and  whether  the  foreign  court  is  not  the  only  competent  court,  by 
reason  of  the  nationality  of  the  plaintiff.  Where,  as  is  the  case 
between  Belgium  and  France,  there  is  no  such  treaty,  the  Belgian 
Court  of  Cassation  holds  that  the  foreign  judgment  may  be  re- 
examined upon  the  merits.  Constant,  III,  116;  Moreau,  no.  189; 
Clunet,  1887,  p.  217;  1888,  p.  837;  Piggott,  439.  And  in  a  very 
recent  case,  the  Civil  Tribunal  of  Brussels  held  that,  "considering 
that  the  right  of  revision  is  an  emanation  of  the  right  of  sover- 


356  PRIVATE   INTERNATIONAL   LAW. 

eignty ;  that  it  proceeds  from  the  imperium,  and  that,  as  such,  it  is 
within  the  domain  of  public  law ;  that  from  that  principle  it  mani- 
festly follows  that,  if  the  legislature  does  not  recognize  executory 
force  in  foreign  judgments  where  there  exists  no  treaty  upon  the 
basis  of  reciprocity,  it  cannot  belong  to  the  parties  to  substitute 
their  will  for  that  of  the  legislature,  by  arrogating  to  themselves 
the  power  of  delegating  to  the  foreign  judge  a  portion  of  sov- 
ereignty."    Clunet,  1894,  pp.  164,  165. 

In  Holland,  the  effect  given  to  foreign  judgments  has  always 
depended  upon  reciprocity,  but  whether  by  reason  of  Dutch  or- 
dinances only,  or  of  general  principles  of  jurisprudence,  does  not 
clearly  appear.  Odzvin  v.  Forbes,  and  Henry  on  Foreign  Law, 
above  cited;  Story's  Conflict  of  Laws,  §  618;  Foelix,  no.  397, 
note;  Clunet,  1879,  p.  369;  1  Ferguson's  International  Law,  85; 
Constant,  171 ;  Moreau,  no.  213. 

In  Denmark,  the  courts  appear  to  require  reciprocity  to  be 
shown  before  they  will  execute  a  foreign  judgment.  Foelix,  nos. 
328,  345;  Clunet,  1 89 1,  p.  987;  Westlake,  ub.  sup.  In  Norway, 
the  courts  re-examine  the  merits  of  all  foreign  judgments,  even 
of  those  of  Sweden.  Foelix,  no.  401 ;  Piggott,  504,  505 ;  Clunet, 
1892,  p.  296.  In  Sweden,  the  principle  of  reciprocity  has  pre- 
vailed from  very  ancient  times ;  the  courts  give  no  effect  to  for- 
eign judgments,  unless  upon  that  principle;  and  it  is  doubtful 
whether  they  will  even  then,  unless  reciprocity  is  secured  by  treaty 
with  the  country  in  which  the  judgment  was  rendered.  Foelix, 
no.  400;  Olivecrona,  in  Clunet,  1880,  p.  83;  Constant,  191 ;  Mo- 
reau, no.  222 ;  Piggott,  503  ;  Westlake,  ub.  sup. 

In  the  Empire  of  Germany,  as  formerly  in  the  States  which 
now  form  part  of  that  Empire,  the  judgments  of  those  States  are 
mutually  executed ;  and  the  principle  of  reciprocity  prevails  as  to 
the  judgments  of  other  countries.  Foelix,  nos.  328,  331,  333-341 ; 
Moreau,  nos.  178,  179;  Vierhaus,  in  Piggott,  460-474;  Westlake, 
ub  sup.  By  the  German  Code  of  1877,  "compulsory  execution  of 
the  judgment  of  a  foreign  court  cannot  take  place,  unless  its  ad- 
missibility has  been  declared  by  a  judgment  of  exequatur;"  "the 
judgment  of  exequatur  is  to  be  rendered  without  examining 
whether  the  decision  is  conformable  to  law;"  but  it  is  not  to  be 


JUDGMENTS.  357 

granted  "if  reciprocity  is  not  guaranteed."  Constant,  79-81 ;  Pig- 
gott,  466.  The  Reichsgericht,  or  Imperial  Court,  in  a  case  report- 
ed in  full  in  Piggott,  has  held  that  an  English  judgment  cannot  be 
executed  in  Germany,  because,  the  court  said,  the  German  courts, 
by  the  Code,  when  they  execute  foreign  judgments  at  all,  are 
"bound  to  the  unqualified  recognition  of  the  legal  validity  of  the 
judgments  of  foreign  courts,"  and  "it  is,  therefore,  an  essential  re- 
quirement of  reciprocity,  that  the  law  of  the  foreign  State  should 
recognize  in  an  equal  degree  the  legal  validity  of  the  judgments 
of  German  courts,  which  are  to  be  enforced  by  its  courts ;  and  that 
an  examination  of  their  legality,  both  as  regards  the  material  jus- 
tice of  the  decision  as  to  matters  of  fact  or  law,  and  with  respect 
to  matters  of  procedure,  should  neither  be  required  as  a  condition 
of  their  execution,  by  the  court  ex  officio,  nor  be  allowed  by  the 
admission  of  pleas  which  might  lead  to  it."  Piggott,  470,  471. 
See  also  Clunet,  1882,  p.  35 ;  1883,  p.  246;  1884,  p.  600. 

In  Switzerland,  by  the  Federal  Constitution,  civil  judgments 
in  one  canton  are  executory  throughout  the  Republic.  As  to  for- 
eign judgments, there  is  no  federal  law, each  canton  having  its  own 
law  upon  the  subject.  But  in  the  German  cantons,  and  in  some 
of  the  other  cantons,  foreign  judgments  are  executed  according 
to  the  rule  of  reciprocity  only.  Constant,  193-204 ;  Piggott,  505- 
516;  Clunet,  1887,  p.  762;  Westlake,  ub  sup.  The  law  upon  this 
subject  has  been  clearly  stated  by  Brocher,  President  of  the  Courc 
of  Cassation  of  Geneva,  and  professor  of  law  in  the  university 
there.  In  his  Nouveau  Traite  de  Droit  International  Prive, 
(1876)  §  174,  treating  of  the  question  whether  "it  might  not  be 
convenient  that  States  should  execute,  without  reviewing  their 
merits,  judgments  rendered  on  the  territory  of  each  of  them  re- 
spectively," he  says :  "It  would,  certainly,  be  advantageous  for  the 
parties  interested  to  avoid  the  delays,  the  conflicts,  the  differences 
of  opinion,  and  the  expenses  resulting  from  the  necessity  of  ob- 
taining a  new  judgment  in  each  locality  where  they  should  seek 
execution.  There  might  thence  arise,  for  each  sovereignty,  a 
juridical  or  moral  obligation  to  lend  a  strong  hand  to  foreign  judg- 
ments. But  would  not  such  an  advantage  be  counterbalanced, 
and  often   surpassed,  by  the  dangers  that  might  arise   from  that 


358  PRIVATE   INTERNATIONAL  LAW. 

mode  of  proceeding?  There  is  here,  we  believe,  a  question  of  re- 
ciprocal appreciation  and  confidence.  One  must,  at  the  outset,  in- 
quire whether  the  administration  of  the  foreign  judiciary,  whose 
judgments  it  is  sought  to  execute  without  verifying  their  merits, 
presents  sufficient  guaranties.  If  the  propriety  of  such  an  execu- 
tion be  admitted,  there  is  ground  for  making  it  the  object  of  diplo- 
matic treaties.  That  form  alone  can  guarantee  the  realization  of 
a  proper  reciprocity;  it  furnishes,  moreover,  to  each  State  the 
means  of  acting  upon  the  judicial  organization  and  procedure  of 
other  States."  In  an  article  in  the  Journal,  after  a  review  of  the 
Swiss  decisions,  he  recognizes  and  asserts  that  "it  comes  within 
the  competency  of  each  canton  to  do  what  seems  to  it  proper  in 
such  matters."  Clunet,  1879,  pp.  88.  94.  And  in  a  later  treatise, 
he  says :  "We  cannot  admit  that  the  recognition  of  a  State  as  sov- 
ereign ought  necessarily  to  have  as  a  consequence  the  obligation 
of  respecting  and  executing  the  judicial  decisions  rendered  by  its 
tribunals ;  in  strict  right,  the  authority  of  such  acts  does  not  ex- 
tend beyond  the  frontier.  Each  sovereignty  possesses  in  particu- 
lar, and  more  or  less  in  private,  the  territory  subject  to  its  power. 
No  other  can  exercise  there  an  act  of  its  authority.  This  territo- 
rial independence  finds  itself,  in  principle,  directly  included  in  the 
very  act  by  which  one  nation  recognizes  a  foreign  State  as  sov- 
ereign ;  but  there  cannot  result  therefrom  a  promise  to  adopt,  and 
to  cause  to  be  executed  upon  the  national  territory,  judgments 
rendered  by  the  officials  of  the  foreign  State,  whoever  they  may 
be.  That  would  be  an  abdication  of  its  own  sovereignty;  and 
would  bind  it  in  such  sort  as  to  make  it  an  accomplice  in  acts  often 
injurious,  and  in  some  cases  even  criminal.  Such  obligations 
suppose  a  reciprocal  confidence;  they  are  not  undertaken,  more- 
over, except  upon  certain  conditions,  and  by  means  of  a  system  of 
regulations  intended  to  prevent  or  to  lessen  the  dangers  which 
might  result  from  them."  3  Cours  de  Droit  International  Prive, 
(1885)  126,  127. 

In  Russia,  by  the  Code  of  1864,  "the  judgments  of  foreign 
tribunals  shall  be  rendered  executory  according  to  the  rules  estab- 
lished by  reciprocal  treaties  and  conventions,"  and,  where  no  rules 
have  been  established  by  such  treaties,  are  to  be  "put  in  execution 


JUDGMENTS.  359 

in  the  Empire,  only  after  authorization  granted  by  the  courts  of 
the  Empire;"  and,  "in  deciding  upon  demands  of  this  kind,  the 
courts  do  not  examine  into  the  foundation  of  the  dispute  adjudged 
by  the  foreign  tribunals,  but  decide  only  whether  the  judgment 
does  not  contain  dispositions  which  are  contrary  to  the  public  or- 
der, or  which  are  not  permitted  by  the  laws  of  the  Empire."  Con- 
stant, 183-185.  Yet  a  Chamber  of  the  Senate  of  St.  Petersburg, 
sitting  as  a  Court  of  Cassation,  and  the  highest  judicial  tribunal 
of  the  Empire  in  civil  matters,  has  declined  to  execute  a  French 
judgment,  upon  the  grounds  that,  by  the  settled  law  of  Russia,  "it 
is  a  principle  in  the  Russian  Empire  that  only  the  decisions  of  the 
authorities  to  whom  jurisdiction  has  been  delegated  by  the  sov- 
ereign power  have  legal  value  by  themselves  and  of  full  right:" 
and  that  "in  all  questions  of  international  law,  reciprocity  must  be 
observed  and  maintained  as  a  fundamental  principle."  Adam  v. 
Schipoff,  Clunet,  1884,  pp.  45,  46,  134.  And  Professor  Engle- 
mann,  of  the  Russian  University  of  Dorpat,  in  an  able  essay,  ex- 
plaining that  and  other  Russian  decisions,  takes  the  following 
view  of  them :  "The  execution  of  a  treaty  is  not  the  only  proof 
of  reciprocity."  "It  is  necessary  to  commit  the  ascertainment  of 
the  existence  of  reciprocity  to  the  judicial  tribunals,  for  the  same 
reasons  for  which  there  is  conferred  upon  them  the  right  to  settle 
all  questions  incident  to  the  cause  to  be  adjudged.  The  existence 
of  reciprocity  between  two  States  ought  to  be  proved  in  the  same 
manner  as  all  the  positive  facts  of  the  case."  "It  is  true  that  the 
principle  of  reciprocity  is  a  principle,  not  of  right,  but  of  policy; 
yet  the  basis  of  the  principle  of  all  regular  and  real  policy  is  also 
the  fundamental  principle  of  right  and  the  point  of  departure  of 
all  legal  order — the  suum  cuique.  This  last  principle  compre- 
hends right,  reciprocity,  utility ;  and  reciprocity  is  the  application 
of  right  to  policy."  "Let  this  principle  be  applied  wherever  there 
is  the  least  guaranty,  or  even  a  probability  of  reciprocity,  and  the 
cognizance  of  this  question  be  committed  to  the  judicial  tribunals, 
and  one  will  arrive  at  important  results,  which,  on  their  side,  will 
touch  the  desired  end,  international  accord.  But,  for  this,  it  is 
indispensable  that  the  application  of  this  principle  should  be  en- 
trusted to  judicial  tribunals,  accustomed  to  decide  affairs  accord- 


360  PRIVATE   INTERNATIONAL   LAW. 

ing  to  right,  and  not  to  administrative  authorities,  which  look- 
above  all  to  utility,  and  are  accustomed  to  be  moved  by  political 
reasons,  intentions,  and  even  passions."  Clunet,  1884,  pp.  120- 
122.  But  it  would  seem  that  no  foreign  judgment  will  be  exe- 
cuted in  Russia,  unless  reciprocity  is  secured  by  treaty.  Clunet, 
1884,  PP.  46,  113,  I39>  J40,  602. 

In  Poland,  the  provisions  of  the  Russian  Code  are  in  force; 
and  the  Court  of  Appeal  of  Warsaw  has  decided  that,  where  there 
is  no  treaty,  the  judgments  of  a  foreign  country  cannot  be  exe- 
cuted, because,  "in  admitting  a  contrary  conclusion,  there  would 
be  impugned  one  of  the  cardinal  principles  of  international  rela- 
tions, namely,  the  principle  of  reciprocity,  according  to  which  each 
State  recognizes  juridical  rights  and  relations,  originating  or  es- 
tablished in  another  country,  only  in  the  measure  in  which  the 
latter,  in  its  turn,  does  not  disregard  the  rights  and  relations  ex- 
isting in  the  former."     Clunet,  1884,  pp.  494,  495. 

In  Roumania,  it  is  provided  by  code  that  "judicial  decisions 
rendered  in  foreign  countries  cannot  be  executed  in  Roumania, 
except  in  the  same  manner  in  which  Roumanian  judgments  are 
executed  in  the  country  in  question,  and  provided  they  are  de- 
clared executory  by  competent  Roumanian  judges;"  and  this  ar- 
ticle seems  to  be  held  to  require  legislative  reciprocity.  Moreau, 
no.  219;  Clunet,  1879,  P-  35U  l885,  P-  537;  1891,  p.  452;  Pig- 
gott,  495. 

In  Bulgaria,  by  a  resolution  of  the  Supreme  Court,  in  1881, 
"the  Bulgarian  judges  should,  as  a  general  rule,  abstain  from  en- 
tering upon  the  merits  of  the  foreign  judgment;  they  ought  only 
to  inquire  whether  the  judgment  submitted  to  them  does  not  con- 
tain dispositions  contrary  to  the  public  order,  and  to  the  Bulgarian 
laws."  Constant,  129,  130;  Clunet,  1886,  p.  570.  This  resolu- 
tion closely  follows  the  terms  of  the  Russian  Code,  which,  as  has 
been  seen,  has  not  precluded  applying  the  principle  of  reciprocity. 

In  Austria,  the  rule  of  reciprocity  does  not  rest  upon  any 
treaty  or  legislative  enactment,  but  has  been  long  established,  by 
imperial  decrees  and  judicial  decisions,  upon  general  principles  of 
jurisprudence.  Foelix,  no.  331 ;  Constant,  100-108;  Moreau,  no. 
185;  Weiss,  Traite  de  Droit  International,  (1886)  980;  Clunet, 


JUDGMENTS.  361 

1891,  p.  1003;  1894,  p.  908;  Piggott,  434.  In  Hungary,  the  same 
principles  were  always  followed  as  in  Austria ;  and  reciprocity  has 
been  made  a  condition  by  a  law  of  1880.  Constant,  109 ;  Moreau, 
no.  186  &  note;  Piggott,  436;  Weiss,  ub  sup. 

In  Italy  before  it  was  united  into  one  kingdom,  each  State 
had  its  own  rules.  In  Tuscany,  and  in  Modena,  in  the  absence 
of  treaty,  the  whole  merits  were  reviewed.  In  Parma,  as  by  the 
French  Ordinance  of  1629,  the  foreign  judgment  was  subject  to 
fundamental  revision,  if  against  a  subject  of  Parma.  In  Naples, 
the  code  and  the  decisions  followed  those  of  France.  In  Sardinia, 
the  written  laws  required  above  all  the  condition  of  reciprocity, 
and,  if  that  condition  was  not  fulfilled,  the  foreign  judgment  was 
re-examinable  in  all  respects.  Fiore,  Effetti  Internazionali  delle 
Sentenze,  (1875)  4°"44;  Moreau,  no.  204.  In  the  Papal  States, 
by  a  decree  of  the  Pope  in  1820,  "the  exequatur  shall  not  be 
granted,  except  so  far  as  the  judgments  rendered  in  the  States  of 
his  Holiness  shall  enjoy  the  same  favor  in  the  foreign  countries ; 
this  reciprocity  is  presumed,  if  there  is  no  particular  reason  to 
doubt  it."  Touillier,  Droit  Civil,  lib.  3,  tit.  3,  c.  6,  sec.  3,  no.  93. 
And  see  Foelix,  no.  343 ;  Westlake,  ub.  sup.  In  the  Kingdom  of 
Italy,  by  the  Code  of  Procedure  of  1865,  "executory  force  is  given 
to  the  judgments  of  foreign  judicial  authorities  by  the  court  of 
appeal  in  whose  jurisdiction  they  are  to  be  executed,  by  obtaining 
a  judgment  on  an  exequatur  in  which  the  court  examines  (a)  if 
the  judgment  has  been  pronounced  by  a  competent  judicial  au- 
thority; (b)  if  it  has  been  pronounced,  the  parties  being  regularly 
cited;  (c)  if  the  parties  have  been  legally  represented  or  legally 
defaulted;  (d)  if  the  judgment  contains  dispositions  contrary  to 
public  order  or  to  the  internal  public  law  of  the  realm."  Constant, 
157.  In  1874,  the  Court  of  Cassation  of  Turin,  "considering  that 
in  international  relations  is  admitted  the  principle  of  reciprocity, 
as  that  which  has  its  foundation  in  the  natural  reason  of  equality 
of  treatment,  and,  in  default  thereof,  opens  the  way  to  the  exer- 
cise of  the  right  of  retaliation ;"  and  that  the  French  courts  ex- 
amine the  merits  of  Italian  judgments,  before  allowing  their  exe- 
cution in  France;  decided  that  the  Italian  courts  of  appeal,  when 
asked  to  execute  a  French  judgment,  ought  not  only  to  inquire 


362  PRIVATE    INTERNATIONAL   LAW. 

into  the  competency  of  the  foreign  court,  but  also  to  review  the 
merits  and  the  justice  of  the  controversy.  Levi  v.  Pitre,  in  Rossi, 
Esecuzione  delle  Sentenze  Straniere,  (ist  ed.  1875)  70,  284;  and 
in  Clunet,  1879,  P-  295-  Some  commentators,  however,  while  ad- 
mitting that  decision  to  be  most  authoritative,  have  insisted  that 
it  is  unsound,  and  opposed  to  other  Italian  decisions,_to  which  we 
have  not  access.  Rossi,  ub.  sup.  (2d  ed.  1890)  92;  Fiore,  142, 
143;  Clunet,  1878,  p.  237;  Clunet,  1879,  pp.  296,  305;  Piggott, 
483;  Constant,  161. 

In  the  principality  of  Monaco,  foreign  judgments  are  not 
executory,  except  by  virtue  of  a  special  ordinance  of  the  Prince, 
upon  a  report  of  the  Advocate  General.  Constant,  169;  Piggott, 
488. 

In  Spain,  formerly,  foreign  judgments  do  not  appear  to  have 
been  executed  at  all.  Foelix,  no.  398 ;  Moreau,  no.  197 ;  Silvela, 
in  Clunet,  1881,  p.  20.  But  by  the  Code  of  1855,  revised  in  1881 
without  change  in  this  respect,  "judgments  pronounced  in  foreign 
countries  shall  have  in  Spain  the  force  that  the  respective  treaties 
give  them ;  if  there  are  no  special  treaties  with  the  nation  in  which 
they  have  been  rendered,  they  shall  have  the  same  force  that  is 
given  by  the  laws  of  that  nation  to  Spanish  executory  judgments; 
if  the  judgment  to  be  executed  proceeds  from  a  nation  by  whose 
jurisprudence  effect  is  not  given  to  the  judgments  pronounced  by 
Spanish  tribunals,  it  shall  have  no  force  in  Spain ;"  and  "applica- 
tion for  the  execution  of  judgments  pronounced  in  foreign  coun- 
tries shall  be  made  to  the  Supreme  Tribunal  of  Justice;  which, 
after  examining  an  authorized  translation  of  the  foreign  judg- 
ment, and  after  hearing  the  party  against  whom  it  is  directed  and 
the  public  minister,  shall  decide  whether  it  ought  or  ought  not  to 
be  executed."  Constant,  141,  142;  Piggott,  499,  500.  A  case 
in  which  the  Supreme  Court  of  Spain  in  1880  ordered  execution 
of  a  French  judgment,  after  reviewing  its  merits,  is  reported  in 
Clunet,  1881,  p.  365.  In  another  case,  in  1888,  the  same  court,  af- 
ter hearing  the  parties  and  the  public  minister,  ordered  execution 
of  a  Mexican  judgment.  The  public  minister,  in  his  demand  for 
its  execution,  said :  "Our  law  of  civil  procedure,  inspired,  to  a 
certain  point,  by  the  modern  theories  of  international  law,  which, 


JUDGMENTS.  363 

recognizing  among  civilized  nations  a  true  community  of  right, 
and  considering  mankind  as  a  whole  in  which  nations  occupy  a 
position  identical  with  that  of  individuals  towards  society,  gives 
authority,  in  Spain,  to  executory  judgments  rendered  by  foreign 
tribunals,  even  in  the  absence  of  special  treaty,  provided  that  those 
countries  do  not  proscribe  the  execution  there  of  our  judgments, 
and  under, certain  conditions  which,  if  they  limit  the  principle, 
are  inspired  by  the  wish  of  protecting  our  sovereignty  and  by  the 
supreme  exigencies  of  justice.  When  nothing  appears,  either  for 
or  against,  as  to  the  authority  of  the  judgments  of  our  courts  in 
the  foreign  country,  one  should  not  put  an  obstacle  to  the  fulfil- 
ment, in  our  country,  of  judgments  emanating  from  other  nations, 
especially  when  the  question  is  of  a  country  which,  by  its  historic 
origin,  its  language,  its  literature,  and  by  almost  the  identity  of 
its  customs,  its  usages,  and  its  social  institutions,  has  so  great  a 
connection  with  our  own — which  obliges  us  to  maintain  with  it 
the  most  intimate  relations  of  friendship  and  courtesy."  And  he 
pointed  out  that  Mexico,  bv  its  code,  had  adopted  reciprocity  as  a 
fundamental  principle.  Among  the  reasons  assigned  by  the  court 
for  ordering  the  Mexican  judgment  to  be  executed  was  that 
"there  exists  in  Mexico  no  precedent  of  jurisprudence  which  re- 
fuses execution  to  judgments  rendered  by  the  Spanish  tribunals." 
Clunet,  1891,  pp.  288-292. 

In  Portugal,  foreign  judgments,  whether  against  a  Portu- 
guese or  against  a  foreigner,  are  held  to  be  reviewable  upon  the 
merits  before  granting  execution  thereof.  Foelix,  no.  399;  Clu- 
net, 1875,  pp.  54,  448;  Moreau,  no.  217;  Constant,  176-180;  West- 
lake,  ub.  sup. 

In  Greece,  by  the  provisions  of  the  Code  of  1834,  foreign 
judgments,  both  parties  to  which  are  foreigners,  are  enforced 
without  examination  of  their  merits ;  but  if  one  of  the  parties  is 
a  Greek,  they  are  not  enforced  if  found  contradictory  to  the  facts 
proved,  or  if  they  are  contrary  to  the  prohibitive  laws  of  Greece. 
Foelix,  no.  396;  Constant,  151,  152;  Moreau,  no.  202;  Saripolos, 
in  Clunet,  1880,  p.  173 ;  Piggott,  475. 

In  Egypt,  under  the  influence  of  European  jurisprudence,  the 
code  of  civil  procedure   has  made    reciprocity  a  condition    upon 


364  PRIVATE   INTERNATIONAL  LAW. 

which  foreign  judgments  are  executed.     Constant,  136;  Clunet, 
1887,  pp.  98,  228 ;  1889,  p.  322. 

In  Cuba  and  in  Porto  Rico,  the  codes  of  civil  procedure  are 
based  upon  the  Spanish  code  of  1855.  Piggott,  435,  503.  In 
Hayti,  the  code  re-enacts  the  provisions  of  the  French  code.  Con- 
stant, 153 ;  Moreau,  no.  203  ;  Piggott,  460. 

In  Mexico,  the  system  of  reciprocity  has  been  adopted,  by  the 
Code  of  1884,  as  the  governing  principle.  Constant,  168;  Clunet, 
1 89 1,  p.  290. 

The  rule  of  reciprocity  likewise  appears  to  have  generally 
prevailed  in  South  America.  In  Peru,  foreign  judgments  do  not 
appear  to  be  executed  without  examining  the  merits,  unless  when 
reciprocity  is  secured  by  treaty.  Clunet,  1879,  PP-  266,  267 ;  Pig- 
gott, 548.  In  Chili,  there  appears  to  have  been  no  legislation  upon 
the  subject ;  but,  according  to  a  decision  of  the  Supreme  Court  of 
Santiago  in  1886,  "the  Chilian  tribunals  should  not  award  an  exe- 
quatur, except  upon  decisions  in  correct  form,  and  also  reserving 
the  general  principle  of  reciprocity."  Clunet,  1889,  p.  135;  Con- 
stant, 131,  132.  In  Brazil,  foreign  judgments  are  not  executed, 
unless  because  of  the  country  in  which  they  were  rendered  admit- 
ting the  principle  of  reciprocity,  or  because  of  a  placet  of  the  gov- 
ernment of  Brazil,  which  may  be  awarded  according  to  the  cir- 
cumstances of  the  case.  Constant,  124  &  note;  Moreau,  no.  192; 
Piggott,  543-546;  Westlake,  ub.  sup.  In  the  Argentine  Repub- 
lic, the  principle  of  reciprocity  was  maintained  by  the  courts,  and 
was  affirmed  by  the  Code  of  1878,  as  a  condition  sine  qua  non  of 
the  execution  of  foreign  judgments,  but  has  perhaps  been  modi- 
fied by  later  legislation.  Moreau,  no.  218;  Palomeque,  in  Clunet, 
1887,  pp.  539-558. 

It  appears,  therefore,  that  there  is  hardly  a  civilized  nation 
on  either  continent,  which,  by  its  general  law,  allows  conclusive 
effect  to  an  executory  foreign  judgment  for  the  recovery  of 
money.  In  France,  and  in  a  few  smaller  States — Norway,  Por- 
tugal, Greece,  Monaco,  and  Hayti — the  merits  of  the  controversy 
are  reviewed,  as  of  course,  allowing  to  the  foreign  judgment,  at 
the  most,  no  more  effect  than  of  being  prima  facie  evidence  of  the 
justice  of  the  claim.     In  the  great  majority  of  the  countries  on  the 


JUDGMENTS.  365 

continent  of  Europe — in  Belgium,  Holland,  Denmark,  Sweden, 
Germany,  in  many  cantons  in  Switzerland,  in  Russia  and  Poland, 
in  Roumania,  in  Austria  and  Hungary,  (perhaps  in  Italy,)  and 
in  Spain — as  well  as  in  Egypt,  in  Mexico,  and  in  a  great  part  of 
South  America,  the  judgment  rendered  in  a  foreign  country  is 
allowed  the  same  effect  only  as  the  courts  of  that  country  allow  to 
the  judgments  of  the  country  in  which  the  judgment  in  question 
is  sought  to  be  executed. 

The  prediction  of  Mr.  Justice  Story  (in  §  618  of  his  Com- 
mentaries on  the  Conflict  of  Laws,  already  cited,)  has  thus  been 
fulfilled,  and  the  rule  of  reciprocity  has  worked  itself  firmly  into 
the  structure  of  international  jurisprudence. 

The  reasonable,  if  not  the  necessary,  conclusion  appears  to  us 
to  be  that  judgments  rendered  in  France,  or  in  any  other  foreign 
country,  by  the  laws  of  which  our  own  judgments  are  reviewable 
upon  the  merits,  are  not  entitled  to  full  credit  and  conclusive  ef- 
fect when  sued  upon  in  this  country,  but  are  prima  facie  evidence 
only  of  the  justice  of  the  plaintiff's  claim. 

In  holding  such  a  judgment,  for  want  of  reciprocity,  not  to 
be  conclusive  evidence  of  the  merits  of  the  claim,  we  do  not  pro- 
ceed upon  any  theory  of  retaliation  upon  one  person  by  reason  of 
injustice  done  to  another;  but  upon  the  broad  ground  that  inter- 
national law  is  founded  upon  mutuality  and  reciprocity,  and  that 
by  the  principles  of  international  law  recognized  in  most  civilized 
nations,  and  by  the  comity  of  our  own  country,  which  it  is  our  ju- 
dicial duty  to  know  and  to  declare,  the  judgment  is  not  entitled 
to  be  considered  conclusive. 

By  our  law,  at  the  time  of  the  adoption  of  the  Constitution,  a 
foreign  judgment  was  considered  as  prima  facie  evidence,  and  not 
conclusive.  There  is  no  statute  of  the  United  States,  and  no 
treaty  of  the  United  States  with  France,  or  with  any  other  nation, 
which  has  changed  that  law,  or  has  made  any  provision  upon  the 
subject.  It  is  not  to  be  supposed  that,  if  any  statute  or  treaty  had 
been  or  should  be  made,  it  would  recognize  as  conclusive  the  judg- 
ments of  any  country,  which  did  not  give  like  effect  to  our  own 
judgments.     In  the  absence  of  statute  or  treaty,  it  appears  to  us 


366  PRIVATE   INTERNATIONAL  LAW. 

equally  unwarrantable  to  assume  that  the  comity  of  the  United 
States  requires  anything  more. 

If  we  should  hold  this  judgment  to  be  conclusive,  we  should 
allow  it  an  effect  to  which,  supposing  the  defendants'  offers  to 
be  sustained  by  actual  proof,  it  would,  in  the  absence  of  a  special 
treaty,  be  entitled  in  hardly  any  other  country  in  Christendom, 
except  the  country  in  which  it  was  rendered.  If  the  judgment 
had  been  rendered  in  this  country,  or  in  any  other  outside  of  the 
jurisdiction  of  France,  the  French  courts  would  not  have  executed 
01  enforced  it,  except  after  examining  into  its  merits.  The  very 
judgment  now  sued  on  would  be  held  inconclusive  in  almost  any 
other  country  than  France.  In  England,  and  in  the  Colonies  sub- 
ject to  the  law  of  England,  the  fraud  alleged  in  its  procurement 
would  be  a  sufficient  ground  for  disregarding  it.  In  the  courts 
of  nearly  every  other  nation,  it  would  be  subject  to  re-examina- 
tion, either  merely  because  it  was  a  foreign  judgment,  or  because 
judgments  of  that  nation  would  be  re-examinable  in  the  courts  of 
France. 

For  these  reasons,  in  the  action  at  law,  the 

Judgment  is  reversed,  and  the  cause  remanded  to  the  Circuit 
Court  with  directions  to  set  aside  the  verdict  and  to  order 
a  new  trial. 

For  the  same  reasons,  in  the  suit  in  equity  between  these  par- 
ties, the  foreign  judgment  is  not  a  bar,  and,  therefore,  the 

Decree  dismissing  the  bill  is  reversed,  the  plea  adjudged  bad, 
and  the  cause  remanded  to  the  Circuit  Court  for  further 
proceedings  not  inconsistent  zvith  this  opinion. 


CORPORATIONS.  367 

CORPORATIONS. 

THOMPSON  v.  WATERS,  25  MICH.  214,  (1872). 

Error  to  St.  Joseph  Circuit. 

In  view  of  the  importance  of  the  question  involved,  the  court 
of  its  own  motion  ordered  a  re-argument  of  this  cause. 
H.  H.  Riley  and  R.  Brackenridge,  for  plaintiff  in  error. 
Shipman  &  Loveridge,  for  defendant  in  error. 
Christiancy,  Ch.  J. 

This  was  an  action  of  ejectment  brought  by  the  plaintiff  in 
error  against  the  defendant  in  error  in  the  circuit  court  for  the 
county  of  St.  Joseph,  to  recover  the  north  half  of  the  south  half  of 
section  24,  township  7  south,  of  range  n  west,  situated  in  said 
county  of  St.  Joseph. 

Both  parties  claimed  title  through  J.  Eastman  Johnson,  who 
owned  the  land  previous  to  the  deeds  stated  below. 

The  plaintiff's  claim  of  title  was  this :  On  the  20th  of  July, 
1853,  Johnson,  by  warranty  deed,  conveyed  the  land  to  the  Fort 
Wayne  &  Chicago  Railroad  company,  a  company  incorporated 
under  the  laws  of  Indiana.  By  several  acts  passed  by  the  legis- 
latures of  the  states  of  Pennsylvania,  Ohio,  Indiana,  and  Illinois, 
authorizing  the  consolidation  of  railroad  companies,  and  by  the 
articles  of  consolidation  of  the  6th  May,  1856,  consolidating  the 
Ohio  &  Penn.  R.  R.  company,  the  Ohio  &  Indiana  railroad  com- 
pany, and  this  Fort  Wayne  &  Chicago  railroad  company,  under 
the  name  of  "The  Pittsburgh,  Fort  Wayne  &  Chicago  Railroad 
Company,"  all  the  powers,  rights,  and  franchises  of  said  several 
companies  so  consolidated,  passed  to,  and  became  vested  in,  the 
said  Pittsburgh,  Fort  Wayne  &  Chicago  railroad  company.  This 
consolidated  company,  on  the  first  day  of  December,  1856,  exe- 
cuted to  Hugh  McCullough,  as  trustee,  a  mortgage  upon  this  and 
other  lands  and  property.  And  the  said  Pittsburgh,  Fort  Wayne 
&  Chicago  railroad  company,  and  McCullough,  the  mortgagee,  by 
their  several  deeds,  dated  respectively  October  17th,  and  October 
24,  i860,  conveyed  the  land  in  question  to  the  plaintiff.  All  the 
foregoing  were  duly  recorded  in  the  office  of  the  register  of  deeds 


368  PRIVATE    INTERNATIONAL   LAW. 

for  St.  Joseph  county,  prior  to  the  execution  of  the  deed  from 
Johnson  to  Merrick,  mentioned  below. 

The  defendant  claimed  title  under  the  following  conveyances : 

i st.  A  quit  claim  deed  from  J.  Eastman  Johnson  to  Benajah 
G.  Merrick,  dated  November  29,  i860;  and 

2d.  A  quit  claim  deed  from  Merrick  to  defendant,  dated 
November  30,  1866;  both  of  which  deeds  are  duly  recorded.  The 
lands  lie  at  least  fifty  miles  from  any  part  of  the  railroad  in  ques- 
tion. 

The  court  charged  the  jury  at  the  request  of  the  defendant, 
"that  the  Fort  Wayne  &  Chicago  railroad  company,  at  the  time  of 
the  execution  of  the  conveyance  from  Johnson  to  it,  had  no  power 
to  purchase  and  hold  the  lands  in  question  in  this  state,"  and,  "that 
the  jury  will  find  for  the  defendant." 

This  raises  the  only  question  in  the  case  which  needs  to  be 
noticed.  Was  the  Fort  Wayne  &  Chicago  railroad  company,  be- 
ing a  corporation  created  by,  and  existing  under,  the  laws  of  the 
state  of  Indiana,  competent  to  take  the  title  to  this  land  in  this 
state,  under  the  deed  executed  to  it  by  Johnson  ? 

This  quesion  depends,  first,  upon  the  laws  of  Indiana;  and, 
second,  upon  the  laws  of  this  state,  and  the  public  policy  indicated 
by  its  legislation. 

1  st.  As  it  was  an  artificial  being,  created  only  by  the  laws  of 
Indiana,  and  by  them  alone  endowed  with  whatever  powers  and 
capacities  it  possesses,  it  could  have  no  capacities  nor  exercise  any 
powers  anywhere,  which  were  not,  expressly  or  by  implication, 
given  by  those  laws ;  or,  in  other  words,  no  powers  or  capacities 
which  would  not  be  recognized  and  sustained  by  the  courts  of  that 
state,  had  the  same  question  of  capacity  to  take  these  lands  come 
before  them  for  adjudication. 

The  Fort  Wayne  &  Chicago  railroad  company,  to  whom  this 
land  was  conveyed,  was  organized  under  the  general  railroad  law 
of  that  state,  entitled,  "An  act  to  provide  for  the  incorporation  of 
railroad  companies,"  approved  May  11,  1852.  Most  of  the  pro- 
visions of  this  act,  in  reference  to  the  powers  of  companies  to  take 
lands  ,confine  the  power  to  such  as  the  necessities  of  the  company 


CORPORATIONS.  369 

require,  in  exercising  its  franchises  of  building  and  maintaining 
the  road. 

The  second  subdivision,  however,  of  the  thirteenth  section, 
gives  power  to  "receive,  hold,  and  take  such  voluntary  grants  and 
donations  of  real  estate  and  personal  property  as  shall  be  made  to 
it,  to  aid  in  the  construction,  maintenance,  and  accommodation  of 
such  railroad;  but  the  real  estate  thus  received,  by  voluntary 
grants,  shall  be  held  and  used  for  the  purpose  of  such  grants  only. 
It  might  admit  of  a  question  whether,  under  this  provision,  there 
was  not  power  to  acquire  lands  to  be  converted  into  money  for  the 
use  of  the  company ;  but  the  question  is  quite  immaterial,  since  the 
act  of  the  legislature  of  the  state  of  Indiana  of  January  20th,  1852, 
— which,  if  ft  did  not  take  effect  at  an  earlier  date,  took  effect  at 
least  with  the  Revised  Statutes  of  that  state,  of  which  it  is  a  part 
(Chap.  184),  on  the  6th  of  May,  1853  (Jones  v.  Covins,  4  Ind., 
305;  Ledley  v.  The  State,  id.,  580;  State  v.  Kiger,  id.,  621), — 
gives  power  §  2)  to  any  railroad  company  which,  then  or  there- 
after, might  be  incorporated,  by  the  consent  of  the  directors  of  the 
same,  "to  receive  the  subscription  for  the  capital  stock  of  said  com- 
panies, under  such  regulations  and  restrictions  as  their  boards  of 
directors  may  prescribe,  any  lands,  town  lots,  real  estate,  or  other 
description  of  property,  as  may  be  offered  for  that  purpose :  Pro- 
vided however,  That  the  same  shall  be  sold,  except  so  much  as 
may  be  necessary  for  the  use  of  said  road,  or  for  th2  purposes 
aforesaid"  [referring  to  certain  provisions  in  the  first  section,  in 
reference  to  lands  taken  on  subscription  of  stock,  or  purchase  for 
depots,  turnouts,  workshops,  warehouses,  etc.],  "within  a  reason- 
able time,  and  the  proceeds  applied  for  the  construction  of  said 
roads,  or  their  appurtenances."  That  under  this  act  the  courts  of 
Indiana  would  hold  that  these  lands,  though  out  of  the  state,  might 
have  been  received  for  stock  of  the  company,  is  sufficiently  appar- 
ent from  the  decision  in  Cincinnati,  Union  &  Fort  Wayne  R.  R. 
Co.  v.  Pearce,  28  Ind.,  502,  in  which  it  was  held  that  lands  situated 
in  the  state  of  Ohio,  conveyed  to  an  Indiana  corporation,  under 
authority  of  this  act,  constituted  a  valid  consideration  for  a  con- 
tract on  the  part  of  the  company  to  issue  stock  for  the  amount. 


370  PRIVATE   INTERNATIONAL   LAW. 

And  I  see  no  reason  to  doubt  that  the  courts  of  that  state 
would  recognize  the  right  of  the  company  to  take  lands  in  another 
state,  in  payment  of  a  debt  due  the  company,  accruing  in  the  legi- 
timate prosecution  of  its  business,  and  which  would,  therefore,  be 
represented  by  the  stock  of  the  company.  Indeed,  independent  of 
this  act  of  January  20th,  1852,  I  see  no  reason  why  the  courts  of 
that  state  should  not  recognize  the  right  of  the  company  to  take 
such  lands  in  payment  of  a  debt  so  accruing,  though  they  might 
not  allow  them  to  take  the  funds  of  the  company  to  invest  in  an- 
other state.  The  main  objection  to  allowing  corporations,  in  the 
state  of  their  creation,  to  hold  lands  not  occupied  and  used  in,  or 
necessary  to,  the  exercise  of  their  franchises,  is  based  upon  the 
idea  that  it  might  be  prejudicial  to  the  public  interest  of  that  state, 
to  allow  corporations  to  become  speculators  in  lands,  or  to  hold 
them  in  large  amounts,  keeping  them  out  of  market  for  an  unrea- 
sonable time,  and  preventing  improvement,  etc. ;  but  this  objection 
could  not  well  be  urged  in  the  state  of  their  creation,  against  their 
holding  lands  in  other  states,  taken  in  payments  of  debts  justly 
due  them,  accruing  in  the  course  of  their  legitimate  business.  The 
state  in  which  the  land  lies  might,  if  it  chose,  object ;  but  the  state 
of  their  creation  could  not  be  interested  in  raising  such  objection; 
but  so  far  as  it  was  interested  at  all,  it  would  seem  to  be  in  favor 
of  sustaining  the  right ;  for,  unless  the  creation  and  prosperous 
continuance  of  such  corporations  were  supposed  to  be  objects  of 
public  interest,  which  deserved  to  be  fostered,  it  is  not  likely  the 
state  would  have  authorized  their  creation.  The  courts  and  pub- 
lic authorities  of  such  state  may,  therefore,  be  presumed  to  look 
with  favor  upon  such  facilities  afforded  to  their  corporations  for 
collecting  the  debts  due  them  in  other  states.  And  if  the  case  were 
reversed,  and  one  of  our  corporations  should  take  lands  in  the 
state  of  Indiana,  in  payment  of  a  debt  due  them  there,  we  should, 
without  hesitation,  say,  "If  Indiana  makes  no  objection  to  this,  we 
do  not  see  how  any  public  interest  of  Michigan,  or  its  people,  can 
be  promoted  by  our  refusing  to  allow  the  corporation  to  avail  it- 
self of  the  facility  thus  afforded  for  the  collection  of  its  debts." 

We  may,  therefore,  safely  assume  that  the  courts  of  Indiana 


CORPORATIONS.  371 

would  not  refuse  to  recognize  the  right  of  this  company  to  take 
lands  in  this  state,  in  payment  or  security  for  debts  due  to  it  here. 

But  these  considerations  only  go  to  show  that  the  laws  of 
Indiana  present  no  obstacle  to  the  taking  or  holding  of  these  lands 
by  the  company ;  in  other  words,  they  show  that,  by  the  laws  of 
Indiana,  so  far  as  the  question  depends  upon  them,  this  company 
was  competent  to  take  this  land  in  this  state. 

But  the  laws  of  Indiana  have  no  force  or  operation  (as  laws, 
giving  powers,  or  creating  or  enforcing  obligation)  within  the 
state  of  Michigan.  No  state  has  the  power  to  create  corporations, 
or  to  regulate  their  powers,  or  to  authorize  the  exercise  of  corpor- 
ate franchises,  in  other  states.  It  may  confer  powers,  in  the  na- 
ture of  a  commission,  to  be  exercised  anywhere,  upon  condition, 
that  their  exercise  be  assented  to  by  the  state  or  sovereignty  where 
their  exercise  is  sought;  but  without  this  assent,  express  or  im- 
plied, such  powers  would  be  nugatory  outside  of  the  state  grant- 
ing them.  Each  state,  by  its  own  legislature,  must  determine  for 
itself  all  such  questions  of  public  policy  arising  within  its  limits. 

But,  upon  the  principle  of  comity,  which  is  a  part  of  the  vol- 
untary law  of  nations,  recognized,  to  a  greater  or  less  extent,  by 
all  civilized  governments,  effect  is  frequently  given  in  one  state 
or  country  to  the  laws,  of  another,  in  a  great  variety  of  ways,  espe- 
cially upon  questions  of  contract  rights  to  property,  and  rights  of 
action  connected  with,  or  depending  upon,  such  foreign  laws, 
without  which  commercial  and  business  intercourse  between  the 
people  of  different  states  and  countries  could  scarcely  exist. 

And,  among  the  states  composing  the  federal  union, — whose 
relations  and  intercourse  are  much  more  intimate  than  those  of 
foreign  states  (properly  so  called),  and  the  interests  of  whose  citi- 
zens are  so  intermingled  that,  in  commercial  and  business  enter- 
prises, state  lines  are  scarcely  more  regarded  by  the  people  than 
county  and  township  lines, — it  is  the  common  interest  of  all  to  en- 
courage the  recognition  of  those  principles  of  state  comity  which 
tend  to  make  us,  in  feeling  and  in  interest.,  one  homogeneous  peo- 
ple, without  limiting  the  independence  of  any  states,  and  reserv- 
ing to  the  people  of  each  the  sole  rignt  of  regulating  their  own  in- 
ternal affairs,  and  of  determining,  at  any  time,  through  their  legis- 


372  PRIVATE    INTERNATIONAL   LAW. 

lation,  what  limits  to  the  recognition  of  the  laws  of  other  states, 
public  policy  or  the  welfare  of  the  people  may  require  to  be  im- 
posed. Such  has  been  the  general  course  and  tendency  of  the  ju- 
dicial decisions  in  the  several  states. 

Upon  scarcely  any  subject  has  this  comity  been  more  gener- 
ally admitted  and  administered  than  in  reference  to  corporate 
rights  and  interests. 

The  rights  which  they  have  generally  been  allowed  to  enjoy, 
and  the  powers  they  have  been  allowed  to  exercise,  in  states  other 
than  that  of  their  creation  or  domicil,  have  varied  considerably, 
according  to  the  nature  and  objects  of  the  different  corporations, 
and  the  corresponding  differences  in  the  mode  of  doing  their  cor- 
porate business.  An  insurance  company  in  doing  its  business  in 
another  state,  owing  to  the  nature  of  the  business  itself  (making 
contracts  of  insurance),  would  seem  to  be  exercising  through 
agents,  its  corporate  franchises,  in  the  same  way  as  in  the  state  of 
its  creation,  with  the  exception  of  corporation  meetings  and  the 
strictly  official  action  of  its  officers ;  and  for  this,  as  well  as  the 
prudential  reason  of  protecting  their  citizens  from  imposition,  and. 
perhaps,  encouraging  home  companies,  other  states  have  quite 
generally  required  their  compliance  with  certain  rules  and  regu- 
lations fixed  by  the  legislature,  as  conditions,  upon  which  alone, 
they  are  allowed  to  do  their  business  within  such  state.  Such  has 
been  the  case  in  reference  to  insurance  companies  in  our  own  state ; 
and  somewhat  similar  regulations  have  sometimes  been  adopted  in 
some  states,  with  reference  to  a  few  other  corporations.  But 
there  are  many  other  corporations  whose  business  is,  in  its  nature, 
more  of  a  local  character,  confined  mainly  within  the  state  of  its 
creation,  and  only  incidentally  making  contracts  or  acquiring  prop- 
erty in  other  states,  in  the  course  of  carrying  on  their  home  busi- 
ness, and  in  such  cases  the  legislatures  of  the  latter  have  seldom 
interfered,  or  placed  them  under  any  restriction.  And  the  rule 
seems  to  be  generally  and  well  settled  that  the  corporate  existence, 
rights  of  making  and  enforcing  contracts,  of  acquiring  property 
and  transacting  business  (not  requiring  the  exercise  of  official 
corporate  action  or  franchises  within  the  state),  of  a  corporation 
created  by  the  laws  of  one  state,  will  be  recognized  and  protected 


CORPORATIONS.  373 

in  another;  subject  only  to  the  qualification,  that  the  enjoyment 
and  exercise  of  such  rights  shall  not  be  contrary  to  the  laws  or 
settled  policy  of  the  state  in  which  they  are  sought  to  be  enjoyed 
or  exercised,  or  prejudicial  to  the  interests  of  such  state  or  its  citi- 
zens. With  these  limitations  the  rights  above  mentioned,  of  a 
corporation  created  in  one  state,  are  as  clearly  recognized  and  as 
generally  enforced  in  another,  as  the  individual  rights  of  an  in- 
habitant of  one  state  are  recognized  and  enforced  in  another,  of 
which  he  is  a  non-resident;  though  such  corporations  cannot,  of 
course,  claim  in  another  state,  such  recognition  of  corporate  ex- 
istence or  rights,  as  a  citizen  of  the  state  of  its  domicil,  under  the 
clause  of  the  constitution  which  secures  to  the  citizens  of  each 
state  "all  the  privileges  and  immunities  of  citizens  in  the  several 
states,"  as  this  would  impair  the  independence  of  the  several 
states,  by  depriving  them  of  the  right  to  regulate  their  own  inter- 
nal affairs,  according  to  their  own  interests,  and  ideas  of  state 
policy. 

A  corporation,  however,  in  any  aspect  in  which  it  is  here  es- 
sential to  consider  it,  is  but  an  artificial  person,  whose  strictly  legal 
existence,  by  force  of  obligatory  law,  is  confined  to  the  state  which 
has  created  it  and  endowed  it  with  its  powers,  capacities,  and 
rights ;  and  it  can  only  exercise  those  powers,  capacities,  and 
rights,  in  another  state,  by  the  permission,  express  or  implied,  of 
the  sovereign  or  legisilative  power  of  the  latter,  which  must  be  its 
own  judge  how  far,  and  upon  what  conditions,  it  is  consistent  with 
its  own  domestic  policy,  and  the  interests  of  its  citizens,  to  accord 
such  recognition.  The  mere  right  of  a  corporation  to  purchase 
and  sell  property,  not  being  in  its  nature  strictly  a  franchise,  but  a 
right  existing  equally  in  individuals  without  special  grant,  is  very 
generally  recognized  in  states  other  than  those  of  its  creation. 

And,  as  well  observed  by  Judge  Story,  in  reference  to  ques- 
tions of  this  kind  (Conflict  of  Lazvs,  §§  35  and  37),  fully  approved 
by  the  supreme  court  of  the  United  States,  in  Bank  of  Augusta 
v.  Earle,  13,  Pet.,  589:  "In  the  silence  of  any  positive  rule,  affirm- 
ing, or  denying,  or  restraining  the  operation  of  foreign  laws, 
courts  of  justice  presume  the  tacit  adoption  of  them  by  their  own 
government,  unless  they  are  repugnant  to  its  policy  or  prejudicial 


374  PRIVATE  INTERNATIONAL  LAW. 

to  its  interests.  It  is  not  the  comity  of  the  courts,  but  the  comity 
of  the  nation"  [or  state]  "which  is  administered,  and  ascertained 
in  the  same  way,  and  guided  by  the  same  reasoning  by  which  all 
other  principles  of  municipal  law  are  ascertained  and  guided." 
See  also  Runyan  v.  Coster's  lessee,  14  Pet.,  122;  Bard  v.  Poole, 
12  N.  Y.,  495,  and  Merrick  v.  Van  Santvoord,  34  N.  Y.,  208. 

As  it  is  rot,  then,  the  comity  of  the  courts,  but  that  of  the 
state,  and  the  question  is  upon  the  adoption  or  qualified  adoption 
in  this  state,  of  the  laws,  or  rather  certain  incidents  growing  out 
of  the  laws,  of  Indiana,  it  follows  that  the  power  of  determining 
the  question  whether,  and  how  far,  or  with  what  modification,  or 
upon  what  conditions,  the  laws  of  that  state,  or  any  rights  de- 
pendent upon  them,  shall  be  recognized  here,  belongs  to  the  legis- 
lative or  law  making  power  of  this  state,  and  that  the  judiciary, 
whose  province  is  only  to  declare,  and  not  to  make,  the  law,  must 
be  guided  in  their  decision  by  the  principle  and  policy  adopted  by 
the  legislature  of  this  state  in  reference  to  this  question.  And  in 
ascertaining  what  this  legislative  policy  is,  we  are  to  be  guided 
not  only  by  such  express  provisions  as  they  have  chosen  to  make, 
and  the  natural  implication  from  them,  but  also  by  their  silence, 
which  may  furnish  as  clear  an  indication  of  what  that  policy  was 
intended  to  be,  as  can  be  drawn  from  what  they  have  expressed; 
since,  if  they  have  made  no  provision  at  all  upon  the  particular 
subject,  or  branch  of  the  subject,  or  question  involved,  it  may  rea- 
sonably be  inferred  that  they  intended  to  adopt,  and  left  to  the 
courts  to  apply,  the  generally  received  principles  of  comity,  and, 
to  that  extent,  to  adopt  the  foreign  law,  or  rather  to  recognize  the 
rights  dependent  upon  such  laws ;  and  if  they  have  chosen  to  leave 
the  matter  without  any  legislative  provision,  the  case  must  be  a 
very  clear  one  indeed,  which  would  authorize  the  courts  to  refuse 
such  recognition,  on  the  ground  that  it  would  be  prejudicial  to  the 
interests  of  the  state ;  since  the  legislature  are  the  proper  repre- 
sentatives of  the  public  interest,  and,  having  the  exclusive  power 
to  determine  what  shall  be  the  public  policy  of  the  state,  if  they 
have  chosen  to  make  no  enactment  upon  the  subject,  it  is  natural 
to  infer  they  omitted  to  do  so  because  they  thought  it  unnecessary, 
and  that  the  generally  recognized  principles  would  be  sufficient  for 


CORPORATION^.  375 

such  cases.  None  of  the  foregoing  principles  have  been  seriously 
questioned  in  this  case,  so  far  as  they  relate  to  the  power  and  ca- 
pacity of  corporations,  created  in  one  state,  to  make  and  enforce 
contracts,  and  to  acquire  personal  property  in  another. 

But  it  is  insisted  that  the  question  of  the  power  or  capacity 
to  take  the  title  to  real  estate,  to  hold  and  dispose  of  it,  stands  upon 
a  different  ground  from  that  of  acquiring  personal  property. 
There  are  undoubtedly  some  differences  between  personal  and  real 
property,  in  respect  to  the  laws  by  which  they  are  to  be  governed ; 
but  whether  they  affect  the  present  case,  remains  to  be  seen. 
Thus,  personal  property  generally  follows  the  person  of  the  owner, 
or,  in  other  words,  the  right  to,  and  the  mode  of  acquiring  and 
disposing  of,  personal  property,  are  generally  to  be  governed  by 
the  law  of  the  domicil  of  the  owner,  while  real  estate,  in  every 
thing  which  pertains  to  the  mode  and  validity  of  conveyance  and 
transfer,  depends  upon  the  law  of  the  place  in  which  it  is  situated. 
But  it  would  be  entirely  competent  for  each  distinct  sovereignty 
to  adopt,  in  this  respect,  the  same  rule  as  to  both  kinds  of  property 
within  its  limits,  if  it  though  fit  to  do  so ;  and  it  is  by  comity  only, 
that  personal  property,  in  one  state  or  country,  is  allowed  to  be 
governed  by  the  laws  of  another.  As  to  the  mode  of  acquiring, 
and  transferring,  and  transmitting,  real  estate,  that  comity  has 
not  been  carried  so  far  as  to  allow  the  foreign  law  to  govern  the 
mode  or  form  of  conveyance.  And  in  most  countries  formerly, 
and  in  many  even  now,  it  has  been  the  custom  to  establish  their 
own  peculiar  rules  governing  the  capacity  of  parties  to  take,  or  the 
parties  capable  of  taking  and  transferring,  real  estate,  while  this 
has  not  been  usual  with  reference  to  the  capacity  to  take,  hold,  or 
transmit  personal  property.  Thus,  in  England,  and  formerly  in 
many  of  the  United  States,  though  aliens  might  take,  they  could 
not  hold,  land,  if  claimed  by  the  king  or  the  state,  and  could  not 
transmit  or  convey  it.  But  it  is  quite  competent  for  any  sover- 
eignty or  state  to  abolish  this  distinction,  and  to  make  the  capacity 
the  same  in  both  cases,  without  any  restriction  upon  either.  This 
is  precisely  what  has  been  done  in  this  state,  and  in  most  of  the 
other  states  of  the  Union.  Our  statute  {Rev.  Stat,  of  1846,  ch.  66, 
sec.  55)  places  aliens,  whether  residents  of  the  state  or  not,  upon 


376  PRIVATE    INTERNATIONAL  LAW. 

the  same  footing  in  all  respects,  as  native  citizens  of  the  state,  or 
of  the  United  States,  in  reference  to  the  right  to  acquire,  hold, 
convey  and  transmit  lands.  And  the  constitution  prohibits  the 
legislature  from  establishing  any  less  liberal  rule,  as  to  such  aliens 
as  are  or  may  be  residents  of  the  state. — Art.  XVIII. ,  §  jj.  All 
persons  alike,  therefore,  without  reference  to  nationality,  race, 
color,  sex  or  age,  who  in  this  state  are  competent  to  take,  hold, 
convey,  or  transmit  personal  property,  can  do  the  same  with  real 
estate.  The  rule  is  general  as  to  both,  and  legislative  action  would 
be  required  to  create  an  exception  as  to  either.  In  fact,  lands,  in 
all  the  western  states  at  least,  have  become  about  as  much  articles 
of  trade  and  commerce,  as  goods  or  other  personal  property,  and 
it  has  been  the  policy  of  most  of  them  to  encourage  this  traffic,  and 
to  facilitate  the  acquisition  and  transfer  of  real  estate. 

Among  the  powers  or  capacities  incident  to  a  corporation  at 
common  law,  without  any  special  mention  in  their  charter,  was 
that  of  taking,  holding  and  conveying  lands ;  and  these  incidents 
still  remain  even  in  this  country,  where  charters  are  granted  only 
by  the  legislature;  subject  only  to  such  restrictions  as  the  legis- 
lature has  seen  fit  to  impose,  by  express  provision  or  tacit  im- 
plication. The  act  of  incorporation,  in  effect,  gives  to  the  corpor- 
ation substantially  the  powers  and  faculties  of  a  natural  person, 
except  as  they  are  in  some  way  restrained  by  the  act  of  incorpora- 
tion, or  some  other  law  of  the  state  creating  it. 

When,  therefore,  a  corporation  is  created  in  the  state  of  In- 
diana, with  powers,  so  far  as  that  state  can  give  them,  of  taking, 
holding  and  conveying  lands  in  this  state,  I  do  not  see  upon  what 
principle  it  can  be  held  that  an  affirmative  enabling  act  in  this  state 
is  necessary  to  give  them  the  capacity  to  take,  hold  and  convey  such 
lands  here,  unless  our  legislature  have,  expressly  or  by  implica- 
tion, forbidden  it.  The  question  of  capacity  seems  to  me  to  rest 
upon  the  principles  of  comity,  as  much  as  their  capacity  to  make 
or  enforce  contracts,  or  to  acquire,  hold  or  convey  personal  prop- 
erty. I  say  the  question  seems  to  me  to  rest  upon  the  same  prin- 
ciples, but  by  this  I  do  not  mean  that  there  may  not  be  stronger 
reasons  against  recognizing  that  capacity  as  to  land,  than  as  to 
personal  property ;  but  these  are  all  reasons  of  public  policy  which 


CORPORATIONS.  377 

bear  upon  the  question  of  comity,  and,  therefore,  more  appropriate 
for  the  legislature  than  the  courts.  Thus  the  main,  if  not  the  only, 
evils  to  be  apprehended  from  allowing  corporations,  domestic  or 
foreign,  to  take,  hold,  or  convey  lands  are:  ist, — The  danger  of 
their  becoming  speculators  in  lands  to  large  amounts,  keeping 
them  unimproved  and  thereby  retarding  the  progress  of  settle- 
ment and  improvement,  or,  if  improved,  preventing  settlers  from 
obtaining  clear  or  independent  titles,  and  introducing  a  system  of 
tenancies  in  which  the  tenants  would  be,  in  a  great  measure,  de- 
pendent upon  such  corporations ;  2d, — The  holding  of  such  lands 
for  a  long  period  of  time,  as  they  pass  by  perpetual  succession 
without  any  change  or  break  by  death,  as  in  the  case  of  natural 
persons ;  and  3d, — The  influence  which  wealthy  corporations, 
holding  large  bodies  of  land  in  the  state,  might  exercise  upon  the 
legislature.  These  considerations  apply  with  no  peculiar  force  to 
railroad  corporations  as  such,  but  equally  to  banking,  manufac- 
turing, insurance  or  other  corporations ;  and  they  are  all  very 
proper  considerations  for  a  constitutional  convention,  in  framing 
the  fundamental  law,  and  for  the  people  in  adopting  it,  as  well  as 
for  the  legislature,  who,  in  all  matters  not  fixed  by  the  constitu- 
tion, are  properly  vested  with  the  power  of  determining  the  pub- 
lic policy.  And  in  a  case  where  it  should  very  clearly  appear  to 
the  court  from  the  amount  of  the  lands  purchased,  or  the  purpose 
for  which  they  were  purchased,  or  other  circumstances,  that  the 
dangers  I  have  mentioned  were  seriously  to  be  apprehended,  it 
may  be  (though  the  present  case  does  not  call  for  an  opinion  upon 
this  point),  that  the  court  would  be  authorized,  without  any  legis- 
lative prohibition  to  that  end,  to  refuse  to  recognize  the  law  of  the 
state  creating  the  corporation,  or  so  much  of  it  as  had  undertaken 
to  confer  the  right  of  holding  such  lands ;  and,  consequently,  to 
treat  the  conveyance  as  void  for  want  of  such  capacity.  But 
when,  from  the  nature  of  the  case,  no  such  danger  can  be  reason- 
ably apprehended,  I  see  no  very  intelligible  ground  upon  which 
the  court  could  thus  treat  the  conveyance  as  void,  unless  the  legis- 
lative department,  in  some  way,  have  clearly  indicated  a  policy 
which  requires  it. 

In  accordance  with  the  principles  already  explained,  it  was 


378  PRIVATE    INTERNATIONAL  LAW. 

held  in  State  v.  Boston,  Concord  &  Montreal  R.  R.  Co.,  25  Vt., 
433  (Judge  Redfield  giving  the  opinion),  that  a  railroad  company, 
chartered  in  the  state  of  New  Hampshire,  had  the  right  and  the 
capacity  to  purchase  lands  in  the  state  of  Vermont,  without  any 
act  of  the  latter  state  affirmatively  authorizing  it ;  though  the  land 
was  not  taken  in  payment  of,  or  security  for,  a  debt  due  the  com- 
pany, but  for  the  purpose  of  being  used  in  connection  with  their 
road,  if  it  should  ever  be  connected  with  a  road  authorized  in  the 
latter  state.  And  it  may,  or  may  not,  also  legitimately  result 
from  the  principles  I  have  already  expressed,  that  in  the  case  now 
before  us,  the  Fort  Wayne  &  Chicago  railroad  company  had  the 
capacity  to  take  this  land  by  the  conveyance  from  Johnson,  and  to 
hold  and  convey  the  same,  though  the  conveyance  were  shown  to 
have  been  made  to  the  company  in  consideration  and  in  payment 
of  Johnson's  subscription  to  the  stock  of  the  company ;  inasmuch 
as  the  statute  of  Indiana,  which  gave  the  authority  to  receive  the 
land  for  stock,  also  required  the  lands  thus  received  to  be  sold 
within  a  reasonable  time,  and  the  proceeds  applied  for  the  con- 
struction of  their  road  and  its  appurtenances ;  and  it  must  natur- 
ally be  supposed  to  have  been  for  the  interest  of  the  company  to 
make  an  early  sale,  without  which  the  stock  subscribed  and  for 
which  the  land  was  received,  could  not  be  rendered  available ;  and 
the  courts  of  Indiana  have  by  judicial  decision  fixed  the  "reason- 
able time"  within  which  a  sale  of  such  lands  should  be  made,  at 
ten  years  (15  Ind.,  459),  in  exact  accordance  with  the  provision  of 
our  constitution  (which  took  effect  Jan.  1,  1851),  which  provides 
that,  "No  corporation  shall  hold  any  real  estate  hereafter  acquired, 
for  a  longer  period  than  ten  years,  except  such  real  estate  as  shall 
be  actually  occupied  by  such  corporation  in  the  exercise  of  its 
franchises," — a  provision  which  goes  upon  the  assumption  or  ad- 
mission that  real  estate,  though  not  actually  occupied  by  a  cor- 
poration in  the  exercise  of  its  franchises,  may  hereafter  be  ac- 
quired, and  applies  to  no  other. 

But  I  express  no  opinion  in  this  case,  upon  the  question,  what 
would  be  the  effect  of  the  conveyance  by  Johnson  to  the  company, 
if  made  in  consideration  of,  or  in  payment  for,  stock.  This  ques- 
tion is  not  involved  in  the  case.     The  record  does  not  show  that 


CORPORATIONS.  379 

such  was  the  consideration  of  that  conveyance,  nor,  in  fact,  what 
the  consideration  was,  except  that  the  deed  expresses  upon  its 
face  the  consideration  of  sixteen  hundred  dollars.  But  this  is 
equally  consistent  with  the  fact,  that  the  conveyance  was  made 
in  payment  of  a  debt,  due  from  Johnson  to  the  company,  as  that 
it  was  paid  in  any  other  way.  Now,  as  it  does  not  appear  from 
the  record  that  the  conveyance  was  made  in  payment  for  stock, 
nor  what  was  the  actual  consideration  for,  or  purpose  of,  the  con- 
veyance, and  we  are  not  allowed  to  presume  illegality,  but  must 
presume  the  transaction  to  have  been  legal  till  the  contrary  is 
shown ;  if  the  deed  would  have  been  void  for  want  of  capacity  to 
take,  if  given  for  one  species  of  consideration,  or  for  one  purpose, 
but  the  company  had  capacity  to  take,  and  the  deed  would  be 
valid,  if  made  for  any  other  consideration  or  purpose,  we  are 
bound  to  presume  that  it  was  made  for  the  consideration  and  for 
the  purpose,  for  which  the  company  had  the  right  and  capacity 
to  take  it ;  and  consequently  the  conveyance  must  be  held  valid,  if 
it  was  legally  possible  for  the  company  to  take  the  title,  for  any 
purpose  or  upon  any  consideration  whatever. — Regents  of  the 
University  v.  Detroit  Young  Men's  Society,  12  Mich.,  138. 

If,  therefore,  this  company  had  the  power  or  capacity  to  take 
this  land,  in  satisfaction  of  a  debt  due  it  from  Johnson,  accruing 
in  the  legitimate  prosecution  of  its  business,  the  conveyance  must 
be  held  valid,  and  the  company  must  be  held  to  have  had  the  capa- 
city to  take  the  title  and  the  power  to  convey  it. 

Now,  whatever  danger  might  be  apprehended  from  allowing 
corporations  of  other  states  to  take  lands  for  stock,  or  for  purposes 
of  speculation,  I  cannot  conceive  that  the  privilege  of  taking  lands, 
in  good  faith,  in  payment  of  debts,  and  which  must,  therefore,  be 
merely  occasional,  and  with  the  intention  and  for  the  purpose  of 
converting  them  into  money  for  the  realization  of  the  proceeds, 
can  be  so  dangerous  to  the  public  interest  of  this  state  or  its  citi- 
zens, as  to  authorize  the  courts  to  declare  such  conveyance  void, 
on  that  ground ;  especially  as  the  property  could  only  be  held  for 
ten  years,  under  the  constitutional  provision  already  cited.  And 
I  think  it  may  be  laid  down  as  a  safe  and  sound  principle  that, 
unless  the  constitution  of  the  state,  or  its  legislature,  have,  either 


380  PRIVATE    INTERNATIONAL  LAW. 

expressly  or  by  clear  implication,  declared  a  contrary  rule,  the 
courts  of  any  state  are  bound  to  recognize  this  right  of  the  cor- 
porations of  other  states,  thus  to  realize  and  collect  the  debts  due 
to  them ;  and  such  seems  to  have  been  the  course  of  decisions  in 
the  several  states  where  this  question  has  arisen.  See  Silver 
Lake  Bank  v.  North,  4  John.  Ch.,  370;  Lumbar d  v.  Aldrich,  8 
N.  H.,  jj;  New  York  Dry  Dock  v.  Hicks,  5  McLean,  in;  Lath- 
rop  v.  Commercial  Bank  of  Scioto,  8  Dana,  114.  Though  in  the 
first  and  the  last  of  the  cases  above  cited,  the  question  arose  upon 
a  mortgage  to  such  corporation,  yet,  in  Kentucky  certainly,  a 
mortgage  conveys  the  legal  title;  and,  therefore,  the  question  is 
the  same  as  here ;  and  I  think  the  same  mav  be  said  of  the  law  of 
New  York,  when  the  mortgage  was  executed,  which  came  in  ques- 
tion in  the  case  first  above  cited.  In  the  other  cases  the  question 
arises  directly  upon  the  power  to  take  the  title. 

Most  of  these  decisions  expressly,  and  the  others  tacitly,  go 
upon  the  ground  that,  inasmuch  as  corporations  have  the  right  to 
make  contracts  in  states  other  than  that  of  their  creation,  and  to 
enforce  them  in  the  courts  of  such  states  (a  right  not  disputed  in 
the  present  case),  in  the  same  manner  as  an  individual  of  another 
state  is  allowed  to  contract  and  to  sue,  they  must,  in  the  absence 
of  any  legislation  to  the  contrary,  be  allowed  to  enforce  their  judg- 
ments in  the  same  way,  and  have  the  right  to  avail  themselves  of 
all  the  same  means  and  facilities  for  that  purpose ;  and,  conse- 
quently, that  where  the  individual  has  the  right  to  obtain  the  title 
to  lands  under  execution,  the  same  right  must  be  accorded  to  such 
corporations ;  and  that,  having  the  right  thus  to  acquire  the  title 
by  the  compulsory  means  of  an  execution,  the  debtor  may,  by  vol- 
untary agreement,  do  what,  without  his  consent,  the  law  would 
compel ;  and  that  he  may,  therefore,  convey,  by  his  own  deed,  the 
title  which,  if  he  had  not  thus  conveyed,  the  law  would,  by  its- 
process,  have  conveyed  in  spite  of  him.  It  is  true,  as  to  the  case 
cited  from  New  Hampshire  (Lumbard  v.  Aldrich,  ubi  supra),  the 
law  of  that  state  did  not  (at  that  time,  at  least),  permit  a  sale  of 
land,  upon  execution  to  the  Highest  bidder,  but  the  proceed- 
ing was  by  appraisal,  and  setting  oft"  to  the  creditor, — in 
other    words,    by    extent, — by    which    none    but    the    creditor 


CORPORATIONS.  381 

could  take  the  title  (See  Morse  v.  Child,  et  al.,  7  N.  H., 
583,  etc.)  ;  and  in  this  case  the  reasoning  above  adverted  to,  was, 
therefore,  absolutely  conclusive,  if  the  right  to  sue  in  the  courts 
of  New  Hampshire,  were  admitted  or  shown.  But  in  the  other 
cases  cited,  the  land  might  be  sold  on  execution  or  decree,  to  the 
highest  bidder,  as  in  this  state;  and  yet  the  same  course  of  rea- 
soning was  held  to  apply ;  and  I  think  properly  so  held ;  for, 
though  the  law  in  tnis  state,  for  instance,  requires  a  sale  of  land 
upon  execution,  at  which  any  person,  as  well  as  the  creditor  can 
bid ;  yet,  in  a  question  of  the  kind  now  before  us,  we  ought  to  take 
a  practical,  rather  than  a  mere  theoretical,  view  of  the  question ; 
and  we  know,  as  a  matter  of  fact,  that,  while  the  law  requires  a 
sale  to  the  highest  bidder,  there  is  not  one  case  in  fifty,  of  a  sale 
upon  execution,  subject  as  it  is  to  redemption,  in  whicn  a  sale  can 
be  made  for  any  reasonable  price,  if  at  all,  except  to  the  creditor ; 
and,  consequently,  the  creditor  is  almost  always  compelled  to  bid 
off  the  land,  or  lose  his  debt,  or  most  of  it ;  and  it  is,  or  should  be, 
the  policy  of  the  law  to  have  the  property  sell  for  its  real  value,  or 
as  near  it  as  may  be,  which  can  seldom  happen,  except  when  sold 
to  the  creditor  himself. 

This  power  of  foreign  corporations  to  take  lands  in  payment 
of  debts,  has  not,  so  far  as  I  have  been  able  to  find,  been  anywhere 
treated  as  one  which  is  in  any  way  dangerous  to  the  citizens,  or 
inconsistent  with  the  public  policy  of  any  state;  and  I  have  been 
unable  to  find  a  single  decided  case,  in  which  the  question  was 
directly  involved,  where  the  power  has  been  denied ;  and  I  am  not 
willing  to  take  the  lead  in  establishing  a  contrary  doctrine — a  doc- 
trine which,  in  its  injustice,  narrowness  and  illiberality,  if  not  in- 
hospitality,  may  have  much  to  commend  it  to  Chinese  exclusive- 
ness,  but  nothing  in  harmony  with  the  liberal  spirit  of  American 
commercial  intercourse. 

But  we  have  ourselves,  in  this  court,  already  held  that  a  for- 
eign banking  corporation  may  take  the  title  to  lands  in  this  state, 
in  payment  of  debts,  and  impliedly  that  such  corporation  may  sell 
such  land. — See  Ives  v.  Bank  of  Lansingburgh,  12  Mich.,  361. 
a  case  which  arose  since  our  present  constitution.  And  we  have  ■ 
in  several  instances  recognized  the  right  of  such  foreign  corpora- 


382  PRIVATE   INTERNATIONAL,   LAW. 

tions,  as  cestui  que  trusts,  when  the  legal  title  was  vested  in  a 
trustee. — See  Trask  v.  Green,  p  Mich.,  358;  Taylor  v.  Board- 
man,  24  Mich.,  287;  and,  so  far  as  affects  any  question  of  state 
policy,  or  danger  to  be  apprehended  from  foreign  corporations 
owning  lands  in  this  state,  or  any  question  of  comity,  I  can  see  no 
difference  between  the  recognition  of  £uch  equitable  interest,  and 
the  legal  estate;  since  the  corporation  would  ordinarily,  in  both 
cases  alike,  control  the  land.  And,  in  every  case  of  a  naked  trust, 
the  statute  itself  executes  the  trust  and  places  the  legal  estate  in 
the  cestui  que  trust. — Rev.  Sat.  1846,  ch.  63,  §  3. 

Now,  as  already  remarked,  there  is  nothing  peculiar  to  rail- 
road corporations,  so  far  as  any  question  of  comity,  or  danger,  or 
prejudice  to  the  interests  of  the  people  or  the  public  interests,  is 
involved.  But  all  the  same  objections  of  this  nature  would  apply 
as  well  and  as  strongly  in  the  case  of  a  foreign  banking,  as  a  for- 
eign railroad,  corporation ;  so  that  I  think  the  question  in  the 
present  case  may  be  looked  upon  as  decided  in  favor  of  the  right 
of  this  company  to  take  this  land  in  payment  of  a  debt,  unless  we 
shall  find  some  legislative  prohibition. 

It  remains,  therefore,  only  to  see  whether  such  prohibition 
is  to  be  found  in  our  statutes.  The  only  provisions  to  be  found  in 
our  statutes  expressly  in  reference  to  foreign  corporations,  which 
can  be  claimed  to  have  any  bearing  upon  the  question,  are  the  fol- 
lowing, which  I  think  do  not  tend  to  negative  the  rule  which  I 
have  endeavored  to  show  is  the  rule  of  comity :  Section  1  of  chap- 
ter 116  of  the  Rev.  Statutes  of  1846  (Comp.  L.  1857,  §  4833)  pro- 
vides :  "A  foreign  corporation,  created  by  the  laws  of  any  other 
state  or  country,  may  prosecute  in  the  courts  of  this  state,  in  the 
same  manner  as  corporations  created  under  the  laws  of  this  state, 
upon  giving  security  for  the  payment  of  the  costs  of  suit,  in  the 
same  manner  that  non-residents  are  required  by  law  to  do." 

This  section,  instead  of  rejecting  or  modifying  the  rule  of 
comity,  expressly  adopts  the  substance  of  that  rule,  so  far  as  the 
enactment  extends,  and  goes  only  to  confirm  the  conclusions  at 
which  I  have  arrived. 

The  next  section  provides:  "But  when,  by  the  laws  of  this 
state,  any  act  is  forbidden  to  be  done  by  any  corporation,  or  by 


CORPORATIONS.  383 

any  association  of  individuals,  without  express  authority  by  law, 
and  such  act  shall  have  been  done  by  a  foreign  corporation,  it  shall 
not  be  authorized  to  maintain  any  action  founded  upon  such  act, 
or  upon  any  liability  or  obligation,  express  or  imolied,  arising  out 
of  ,or  made  or  entered  into  in  consideration  of  such  act." 

This  section  applies  only  to  acts  which,  by  the  laws  of  this 
state,  are  forbidden  to  be  done  "by  any  corporation  or  association 
of  individuals,  without  express  authority  of  law."  It  does  not 
apply  at  all  to  cases  where  only  some  particular  corporation,  or 
even  a  particular  class  of  corporations,  is  forbidden  by  the  laws 
of  this  state  to  do  certain  things,  but  only  to  cases  where  such  pro- 
hibition is  general,  applying  to  all  corporations  and  all  associations 
of  individuals,  in  this  state.  It  puts  the  foreign  corporations,  in 
all  the  enumerated  particulars,  upon  the  same  footing  as  domestic 
corporations  are  placed  by  those  state  laws,  and  those  only,  which 
apply  generally  to  all  the  corporations  in  the  state,  but  not  as  some 
particular  corporation  or  class  of  corporations  may  be  placed  by 
some  law  specially  applicable  to  them. 

This  again  is,  I  think,  the  proper  and  generally  recognized 
measure  of  state  comity.  A  subsequent  section  makes  provision 
for  attachment  against  foreign  corporations.  These  are  all  the 
provisions  to  be  found  in  our  statutes,  at  the  time  of  this  convey- 
ance, having  express  reference  to  foreign  corporations,  which 
have  any  possible  bearing  upon  the  question  here  involved. 

If  we  look  to  the  several  separate  acts  of  incorporation  in 
force  at  the  time,  and  endeavor  to  extract  from  them  a  legislative 
policy  in  reference  to  our  own  domestic  corporations,  as  to  the 
power  or  capacity  in  question,  we  shall  find  that,  owing  to  the 
great  variety  and  dissimilarity  of  the  several  acts  in  this  respect, 
no  reasonably  certain  or  satisfactory  conclusion  can  be  drawn; 
and  no  court  can  safely  declare  a  state  or  legislative  policy  upon 
grounds  so  utterly  unstable  and  conjectural.  Some  of  these  acts 
gave  express  power  to  take  and  dispose  of  real  and  personal  es- 
tate without  any  restriction  whatever,  leaving  them  exactly  upon 
the  same  footing  as  corporations  at  common  law ;  others  allowed 
them  to  hold  and  dispose  of  real  estate  up  to  a  certain  amount  in 
value ;  others  limited  the  right  by  the  quantity  of  acres ;  some  of 


384  PRIVATE   INTERNATIONAL  LAW. 

them  restricted  the  right  to  such  lands  as  might  be  required  for 
the  proper  corporation  buildings  and  such  as  might  be  taken  or 
conveyed  to  it  in  payment,  satisfaction  or  security  for  d-bts  due 
the  corporation:  some  neither  expressly  gave  or  restricted  the 
power  to  take  lands,  and  left  the  corporation  with  all  the  common- 
law  incidents  in  this  respect;  and  others  were  very  restrictive  in 
confining  the  right  to  such  lands  only  as  were  used  in  the  exercise 
of  their  corporate  franchises.  Under  many  of  them,  perhaps 
most  of  them,  the  right  to  take  lands  in  payment  of  debts  in  good 
faith  accruing  to  the  corporation  in  the  prosecution  of  their  busi- 
ness, would  be  very  clear;  since  this  would  follow  as  an  incident 
to  any  corporation,  unless  in  some  way  restrained  by  the  charter. 
It  may  be  true,  as  a  general  observation,  that  the  railroad  charters 
granted  in  the  state  were  more  restrictive,  in  this  respect,  than 
those  of  several  other  species ;  but,  as  I  have  already  shown,  so  far 
as  material  to  the  question  of  comity,  and  what  rights  of  foreign 
corporations  are  to  be  recognized,  no  distinction  in  principle  can 
be  made  between  railroad,  and  other,  corporations ;  and  if  the  lat- 
ter have  been  made  more  restrictive,  as  an  average,  it  has  been  for 
reasons  foreign  to  the  question  here  involved. 

Bearing  in  mind  the  great  variety  and  discrepancy,  in  this 
respect,  in  the  great  number  of  separate  charters  or  acts  of  incor- 
poration, as  well  those  granted  prior,  us  those  subsequent,  to 
chapter  55,  of  the  Revised  Statutes  of  1846,  let  us  examine  the 
seventh  section  of  the  chapter,  remembering,  however,  that  it  was 
not  competent  for  the  legislature,  by  these  general  provisions,  to 
take  away  from  any  previously  existing  corporation  any  corporate 
right  granted  by  the  charter,  and  that  it  was  equally  incompetent, 
by  any  of  these  provisions,  to  tie  the  hands  of  future  legislatures, 
should  they  see  fit  to  make  any  different  provisions  either  in  a 
special  charter  or  by  general  law.  Section  seven,  which,  by  its 
context,  applies  generally  to  all  corporations,  created  or  to  be 
created,  in  this  state,  declares :  "Every  such  corporation  may  hold 
land  to  an  amount  authorized  by  law,  and  may  convey  the  same." 
There  is  no  possible  view  in  which  this  provision  was  necessary 
for  any  purpose.  But  we  are  bound  -so  to  construe  it,  if  possible, 
as  not  to  make  it  pure  nonsense.     This  provision,  of  itself,  neither 


CORPORATIONS.  385 

gives  nor  takes  away  any  power  whatever.  It  merely  recognizes 
such  powers  as  any  such  corporation  then  had,  or  might  thereafter 
have,  "by  law."  If,  by  the  terms,  "may  hold  land  to  an  amount 
authorized  by  law,"  we  are  to  understand  such  lands  only  as,  by 
express  provision  of  statute,  they  were  authorized  to  hold,  then, 
it  has  no  possible  force  or  operation  whatever,  and  its  insertion 
was  sheer  nonsense ;  for,  in  such  case,  the  corporation,  would  take 
their  authority  from  the  statute  conferring  it,  and  not  from  this 
general  provision,  which  can  neither  add  to,  nor  take  from,  its 
force;  and,  upon  this  theory  of  interpretation,  no  possible  object 
could  have  existed  for  its  enactment.  When  a  statute  expressly 
confers  a  right,  it  does  not  need  another  statute  to  declare,  or 
to  give  it,  its  effect.  But  if  the  term,  "authorized  by  law,"  were 
intended  to  include  those  incidental  powers  or  rights  to  hold 
lands,  which  result,  as  common-law  incidents,  from  the  creation 
of  a  corporation,  without  being  expressed,  so  far  as  such  incidents 
were  not  restrained  by  the  legislature;  then,  though  the  statute 
was  not  necessary,  it  is  not  so  purely  nonsensical  as  it  would  be 
upon  the  other  interpretation ;  as  it  may  be  treated  as  a  declara- 
tory statute  merely.  It  is  in  this  sense,  and  this  only,  that  it  can 
have  any  supposable  or  possible  effect  upon,  or  application  to,  the 
various  corporations  then  existing,  or  thereafter  to  be  created. 
In  effect,  therefore,  when  applied  to  such  corporations,  in  the  light 
of  the  existing  statutes  and  the  common  law,  the  provision  is  noth- 
ing more  than  a  declaration,  that  corporations  might  hold  and  con- 
vey lands,  wherever  this  common-law  right  was  in  no  way  re- 
strained by  the  legislature. 

I  find  no  other  statute,  then  in  force,  which  can  have  any  pos- 
sible bearing  upon  the  question.  The  legislature  have,  in  no  re- 
spect material  to  the  present  case,  adopted  any  policy,  or  enacted 
any  statute,  modifying  the  generally  received  doctrine  of  comity. 
And  I  think  the  company  had  the  rapacity  to  take,  and  did  take, 
the  title  to  the  lands,  and  that  their  deed,  with  that  of  McCul- 
lough,  the  mortgagee  and  trustee,  conveyed  the  title  to  the  plain- 
tiff ;  that  the  court  erred  in  charging  to  the  contrary,  and  that  the 
judgment  should  be  reversed,  with  costs,  and  a  new  trial  awarded. 

Cooley,  J.,  concurred. 


386  PRIVATE    INTERNATIONAL   LAW. 

MUTUAL  LIFE  INS.  CO.  v.  SPRATLEY,  172  U.  S.  602,  (1899). 
The  case  is  stated  in  the  opinion. 

Mr.  B.  M.  Estes,  with  whom  was  Mr.  Francis  Fentress  on 
the  brief,  for  plaintiff  in  error. 

Mr.  Thomas  B.  Turley  and  Mr.  Luke  E.  Wright  for  defend- 
ant in  error. 

Mr.  Justice  Peckham  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  filed  its  bill  against  the  defendant  in  er- 
ror in  the  chancery  court  of  Shelby  County,  Tennessee,  for  the  pur- 
pose of  enjoining  her  from  taking  any  proceedings  under  a  judg- 
ment by  default  which  she  had  obtained  in  the  State  of  Tennessee, 
against  the  corporation,  upon  certain  policies  of  insurance,  and 
also  for  the  purpose  of  obtaining  a  decree  pronouncing  the  judg- 
ment void  and  releasing  the  corporation  therefrom.      *      *      * 

The  corporation  is  a  life  insurance  company,  incorporated 
under  the  laws  of,  and  having  its  principal  office  in,  the  State  of 
Connecticut.  It  did  a  life  insurance  business  in  the  State  of  Ten- 
nessee from  February  i,  1870,  until  July  1,  1894.  *  *  *  On 
July  1,  1894,  the  company  ceased  issuing  any  new  policies  in  the 
State  of  Tennessee,  and  withdrew  its  agents  from  the  State.  It 
had,  however,  a  number  of  policies,  other  than  those  issued  on  the 
life  of  Mr.  Spratley,  outstanding  in  the  State  at  the  time  it  with- 
drew, (how  many  is  not  stated,)  and  it  continued  to  receive  the 
premiums  on  these  policies  through  its  former  agent  for  that 
State,  and  to  settle,  by  payment  or  otherwise,  the  claims  upon 
policies  in  that  State  as  they  fell  due.      ****** 

Mr.  Spratley  died  in  the  city  of  Memphis,  in  the  State  of 
Tennessee,  on  the  28th  of  February,  1896,  leaving  his  widow,  the 
defendant  in  error,  surviving  him.  The  two  policies  were  in  force 
at  the  time  of  his  death.  The  company  sent  its  agent  to  Memphis 
to  act  under  its  instructions  in  the  investigation  and  adjustment 
of  the  claim.  Mr.  Chaffee  was  the  agent  employed,  and  he  had 
been  employed  in  the  service  of  the  company  since  the  first  day 
of  July,  1887.     *******  **** 

The  company  sent  Mr.  Chaffee  specially  to  the  State  of  Ten- 


CORPORATIONS.  387 

nessee  for  the  purpose  of  investigating  into  the  circumstances  of 
the  death  of  Mr.  Spratley  and  into  the  merits  of  the  claim  made 
by  Mrs.  Spratley,  and  while  there  he  was  authorized  by  the  com- 
pany to  compromise  the  claim  made  by  her  upon  terms  stated  in 
a  telegram  from  the  vice  president  of  the  company.  While  Mr. 
Chaffee  was  engaged  in  negotiations  with  Mrs.  Spratley  and  her 
brother  in  relation  to  her  claims,  and  after  she  had  refused  to  ac- 
cept the  compromise  offered  by  him  in  behalf  of  the  company,  and 
on  April  15,  1896,  he  was  served,  in  Memphis,  with  process 
against  the  corporation  in  an  action  upon  the  policies  above  men- 

4-*  ("\tT  pf|  "**  5»C  ^  *•*  "•*  *  *  *  ***  * 

On  July  2,  1896,  judgment  by  default  was  entered  against  the 

A  statute  of  Tennessee  provided  that  process  may  be  served 
upon  any  agent  of  the  corporation,  found  within  the  county  where 
the  suit  is  brought,  no  matter  what  character  of  agent  such  person 

The  Federal  question  with  which  we  are  now  concerned  is 
whether  the  court  obtained  jurisdiction  to  render  judgment  in  the 
case  against  the  company  so  that  to  enforce  it  would  not  be  tak- 
ing the  property  of  the  company  without  due  process  of  law. 
Even  though  we  might  be  unprepared  to  say  that  a  service  of 
process  upon  "any  agent,"  found  within  the  countv,  as  provided 
in  the  statute,  would  be  sufficient  in  the  case  of  a  foreign  corpora- 
tion, the  question  for  us  to  decide  is  whether  upon  the  facts  of  this 
case  the  service  of  process  upon  the  person  named  was  a  sufficient 
service  to  give  jurisdiction  to  the  court  over  this  corporation.  If  it 
were,  there  was  due  process  of  law,  whatever  we  might  think  of 
the  other  provisions  of  the  act  in  relation  to  the  service  upon  any 
agent  of  a  corporation,  no  matter  what  character  of  agent  the 
person  might  be.  If  the  person  upon  whom  process  was  served  in 
this  case  was  a  proper  agent  of  the  company,  it  is  immaterial 
whether  the  statute  of  the  State  also  permits  a  service  to  be  made 
on  some  other  character  of  agent  which  we  might  not  think  suffi- 
ciently representative  to  give  the  court  jurisdiction  over  the  cor- 
poration. If  the  service  be  sufficient  in  this  instance,  the  corpora- 
tion could  not  herein  raise  the  question  whether  it  would  be  suffi- 


388  PRIVATE    INTERNATIONAL  LAW. 

cient  in  some  other  and  different  case  coming  under  the  provision 
of  the  state  statute. 

In  a  suit  where  no  property  of  a  corporation  is  within  the 
State,  and  the  judgment  sought  is  a  personal  one,  it  is  a  material 
inquiry  to  ascertain  whether  the  foreign  corporation  is  engaged 
in  doing  business  within  the  State;  Goldey  v.  Morning  News,  156 
U.  S.  519;  Merchants'  Manufacturing  Co.  v.  Grand  Trunk  Rail- 
way Co.,  13  Fed.  Rep.  358;  and  if  so,  the  service  of  process  must 
be  upon  some  agent  so  far  representing  the  corporation  in  the 
State  that  he  may  properly  be  held  in  law  an  agent  to  receive  such 
process  in  behalf  of  the  corporation.  An  express  authority  to  re- 
ceive process  is  not  always  necessary. 

We  think  the  evidence  in  this  case  shows  that  the  company 
was  doing  business  within  the  State  at  the  time  of  this  service  of 
process.  From  1870  until  1894,  it  had  done  an  active  business 
throughout  the  State  by  its  agents  therein,  and  had  issued  policies 
of  insurance  upon  the  lives  of  citizens  of  the  State.  How  many 
policies  it  had  so  issued  does  not  appear.  Its  action  in  July,  1894, 
in  assuming  to  withdraw  from  the  State,  was  simply  a  recall  of 
its  agents  dcing  business  therein,  the  giving  of  a  notice  to  the 
state  insurance  commissioner,  and  a  refusal  to  take  any  new  risks 
or  to  issue  any  new  policies  within  the  State.  Its  outstanding 
policies  were  not  affected  thereby,  and  it  continued  to  collect  the 
premiums  upon  them  and  to  pay  the  losses  arising  thereunder,  and 
it  was  doing  so  at  the  time  of  the  service  of  process  upon  its  agent. 

The  corporation  alleged  in  its  bill  filed  ia  this  suit  that  the 
defendant  herein  was  taking  garnishee  proceedings  against  its 
policy  holders  in  the  State  for  the  purpose  of  collecting,  as  far  as 
possible,  the  amount  of  the  judgment  she  had  obtained  against  the 
corporation,  and  it  gave  in  its  bill  the  names  of  some  thirteen  of 
such  policyholders  against  whom  proceedings  had  been  taken  by 
this  defendant.  It  cannot  be  said  with  truth,  as  we  think,  that  an 
insurance  company  does  no  business  within  a  State  unless  it  have 
agents  therein  who  are  continuously  seeking  new  risks  and  it  is 
continuing  to  issue  new  policies  upon  such  risks.  Having  suc- 
ceeded in  taking  risks  in  the  State  through  a  number  of  years,  it 
cannot  be  said  to  cease  doing  business  therein  when  it  ceases  to 


CORPORATIONS.  389 

obtain  or  ask  for  new  risks  or  to  issue  new  policies,  while  at  the 
same  time  its  old  policies  continue  in  force  and  the  premiums 
thereon  are  continuously  paid  by  the  policyholders  to  an  agent  re- 
siding in  another  State,  and  who  was  once  the  agent  in  the  State 
where  the  policyholders  resided.  This  action  on  the  part  of  the 
company  constitutes  doing  business  within  the  State,  so  far  as  is 
necessary,  within  the  meaning  of  the  law  upon  this  subject.  And 
this  business  was  continuing  at  the  time  of  the  service  of  process 
on  Mr.  Chaffee  in  Memphis. 

It  is  admitted  that  the  person  upon  whom  process  was  served 
was  an  agent  of  the  company.  Was  he  sufficiently  representative 
in  his  character  ?  He  was  sent  into  the  State  as  such  agent  to  in- 
vestigate in  regard  to  this  very  claim,  and  while  there  he  was  em- 
powered to  compromise  it  within  certain  stated  terms,  leaving  him 
a  certain  discretion  as  to  the  amount.  He  was  authorized  to  set- 
tle the  claim  for  the  amount  of  the  reserve  "or  thereabouts."  He 
did  not  leave  his  character  as  agent  when  he  entered  the  State. 
On  the  contrary,  it  was  as  agent,  and  for  the  purpose  of  represent- 
ing the  company  therein,  that  he  entered  the  State,  and  as  agent 
he  was  seeking  a  compromise  of  the  claim  by  the  authority  of  the 
company,  and  therein  representing  it.  Why  was  he  not  such  an 
agent  as  it  would  be  proper  to  serve  process  upon  ?  He  had  been 
appointed  an  agent  by  the  company ;  his  whole  time  and  services 
were  given  to  the  company  under  an  appointment  made  years  pre- 
viously ;  he  received  a  salary  from  the  company  not  dependent  upon 
any  particular  service  at  any  particular  time.  The  company  hav- 
ing issued  policies  upon  the  life  of  an  individual  who  had  died,  and 
a  claim  having  been  made  for  payment  in  accordance  with  the 
terms  of  those  policies,  the  company  clothed  him  with  authority 
to  go  into  the  State  and  in  its  behalf  investigate  the  facts  sur- 
rounding the  claim,  and  authority  was  given  him  to  compromise 
it  upon  terms  which  left  to  him  discretion  to  some  extent  as  to  the 
amount  of  payment.  He  was  not  a  mere  agent  appointed  for  each 
particular  case.  He  was  employed  generally,  by  the  company,  to 
act  in  its  behalf  in  all  cases  of  this  kind  and  as  directed  by  the  com- 
pany in  each  case.  Entering  the  State  with  this  authority,  and 
acting  in  this  capacity,  the  company  itself  doing  business  within 


390  PRIVATE   INTERNATIONAL  LAW. 

the  State,  it  seems  to  us  that  he  sufficiently  represented  the  com- 
pany within  the  principle  which  calls  for  the  service  of  process 
upon  a  person  who  is  in  reality  sufficient  of  a  representative  to 
give  the  court  jurisdiction  over  the  company  he  represents.  In 
view  of  all  the  facts,  we  thirfk  it  a  proper  case  in  which  the  law 
would  imply,  from  his  appointment  and  authority,  the  power  to 
receive  service  of  process  in  the  case  which  he  was  attending  to. 

Taken  in  connection  with  the  further  fact  of  sending  (as  pro- 
vided for  in  the  statute)  a  copy  of  the  process  and  notice  thereof 
by  registered  letter  to  the  home  office  of  the  company,  and  also 
the  personal  service  upon  the  company  of  a  copy  of  the  process 
and  notice  thereof  at  its  home  office,  it  must  be  admitted  that  one 
of  the  chief  objects  of  all  such  kinds  of  service,  namely,  notice  and 
knowledge  on  the  part  of  the  company  of  the  commencement  of 
suit  against  it,  is  certainly  provided  for.  We  do  not  intimate  that 
mere  knowledge  or  notice  as  thus  provided  would  be  sufficient 
without  a  service  on  the  agent  in  the  state  where  suit  was  com- 
menced, but  we  refer  to  it  as  a  part  of  the  facts  in  the  case. 

In  Lafayette  Insurance  Company  v.  French,  18  How.  404, 
407,  it  appeared  that  a  statute  of  Ohio  made  provision  for  service 
of  process  on  foreign  insurance  companies  in  suits  founded  upon 
contracts  of  insurance  there  made  by  them  with  citizens  of  that 
State.  One  of  those  provisions  was  that  service  of  process  on  a 
resident  agent  of  a  foreign  corporation  should  be  as  effectual  as 
though  the  same  was  served  upon  the  principal.  In  a  suit  com- 
menced in  Ohio  against  a  foreign  corporation  by  service  upon  its 
resident  agent,  the  company  objected  to  the  validity  of  that  serv- 
ice, and  that  question  came  before  this  court,  and  Mr.  Justice  Cur- 
tis, in  delivering  the  opinion  of  the  court,  said : 

"We  find  nothing  in  this  provision  either  unreasonable  in  it- 
self or  in  conflict  with  any  principle  of  public  law.  It  cannot  be 
deemed  unreasonable  that  the  State  of  Ohio  should  endeavor  to 
secure  to  its  citizens  a  remedy,  in  their  domestic  forum,  upon  this 
important  class  of  contracts  made  and  to  be  performed  within 
that  State,  and  fully  subject  to  its  laws;  nor  that  proper  means 
should  be  used  to  compel  foreign  corporations,  transacting  this 
business  of  insurance  within  the  State,  for  their  benefit  and  profit, 


CORPORATIONS.  391 

to  answer  there  for  the  breach  of  their  contracts  of  insurance  there 
made  and  to  be  performed.  Nor  do  we  think  the  means  adopted 
to  effect  this  object  are  open  to  the  objection  that  it  is  an  attempt 
improperly  to  extend  the  jurisdiction  of  the  State  beyond  its  own 
limits  to  a  person  in  another  State.  Process  can  be  served  on  a 
corporation  only  by  making  service  thereof  on  some  one  or  more 
of  its  agents.  The  law  may,  and  ordinarily  does,  designate  the 
agent  or  officer  on  whom  process  is  to  be  served.  For  the  purpose 
of  receiving  such  service,  and  being  bound  by  it,  the  corporation 
is  identified  with  such  agent  or  officer.  The  corporate  power  to 
receive  and  act  on  such  service,  so  far  as  to  make  it  known  to  the 
corporation,  is  thus  vested  in  such  officer  or  agent.  Now,  when 
this  corporation  sent  its  agent  into  Ohio,  with  authority  to  make 
contracts  of  insurance  there,  the  corporation  must  be  taken  to  as- 
sent to  the  condition  upon  which  alone  such  business  could  be 
there  transacted  by  them ;  that  condition  being,  that  an  agent,  to 
make  contracts,  should  also  be  the  agent  of  the  corporation  to  re- 
ceive service  of  process  in  suits  on  such  contracts;  and,  in  legal 
contemplation,  the  appointment  of  such  an  agent  clothed  him  with 
power  to  receive  notice,  for  and  on  behalf  of  the  corporation,  as 
effectually  as  if  he  were  designated  in  the  charter  as  the  officer  on 
whom  process  was  to  be  served;  or,  as  if  he  had  received  from 
the  president  and  directors  a  power  of  attorney  to  that  effect. 
The  process  was  served  within  the  limits  and  jurisdiction  of  Ohio, 
upon  a  person  qualified  by  law  to  represent  the  corporation  there 
in  respect  to  such  service ;  and  notice  to  him  was  notice  to  the 
corporation  which  he  there  represented,  and  for  whom  he  was  em- 
powered to  take  notice." 

The  act  did  not  provide  for  an  express  consent  to  receive  such 
service,  on  the  part  of  the  company.  The  consent  was  implied 
because  of  the  company  entering  the  State  and  doing  business 
therein  subject  to  the  provisions  of  the  act. 

It  is  true  that  in  the  above  case  the  person  upon  whom  serv- 
ice of  process  was  made  is  stated  to  have  been  a  resident  agent  of 
the  company ;  but  the  mere  fact  of  residence  is  not  material,  (other 
things  being  sufficient,)  provided  he  was  in  the  State  represent- 
ing the  company  and  clothed  with  power  as  an  agent  of  the  com- 


392  PRIVATE  INTERNATIONAL   LAW. 

pany  to  so  represent  it.  His  agency  might  be  sufficient  in  such 
event,  although  he  was  not  a  resident  of  the  State.  It  is  also  true 
that  the  agent  in  that  case  was  an  agent  with  power  to  make  con- 
tracts of  insurance  in  behalf  of  the  corporation  in  that  State,  and 
from  that  fact  in  connection  with  the  statute,  the  court  inferred 
the  further  fact  of  an  implied  power  to  receive  service  of  process 
in  behalf  of  the  corporation.  The  agent  had  not,  so  far  as  the 
case  shows,  received  any  express  authority  from  the  company  to 
receive  service  of  process.  The  court  does  not  hold  nor  is  it  inti- 
mated that  none  but  an  agent  who  has  authority  to  make  contracts 
of  insurance  in  behalf  of  the  company  could  be  held  to  represent 
it  for  the  purpose  of  service  of  process  upon  it.  It  is  a  question 
simply  whether  a  power  to  receive  service  of  process  can  reason- 
ably and  fairly  be  implied  from  the  kind  and  character  of  agent 
employed.  And  while  the  court  held  that  an  agent  with  power 
to  contract  was,  in  legal  contemplation,  clothed  with  power  to  re- 
ceive notice  for  and  on  behalf  of  the  corporation  as  effectually  as 
if  he  were  designated  in  the  charter  as  the  officer  upon  whom 
process  was  to  be  served,  we  think  it  is  not  an  unnatural  or  an 
improper  inference,  from  the  facts  in  the  case  at  bar,  to  infer  a 
power  on  the  part  of  this  agent,  thus  sent  into  the  State  by  the 
company,  to  receive  notice  on  its  behalf  in  the  same  manner  and 
to  the  same  extent  that  the  agent  in  the  case  cited  was  assumed  to 
have.  In  such  case  it  is  not  material  that  the  officers  of  the  cor- 
poration deny  that  the  agent  was  expressly  given  such  power,  or 
assert  that  it  was  withheld  from  him.  The  question  turns  upon 
the  character  of  the  agent,  whether  he  is  such  that  the  law  will 
imply  the  power  ana  impute  the  authority  to  him,  and  if  he  be  that 
kind  of  an  agent,  the  implication  will  be  made  notwithstanding  a 
denial  of  authority  on  the  part  of  the  other  officers  of  the  cor- 
poration. 

This  case  is  unlike  that  of  St.  Clair  v.  Cox,  106  U.  S.  350. 
There  the  record  of  the  judgment,  which  was  held  to  have  been 
properly  excluded,  did  not  (and  there  is  no  evidence  which  did) 
show  that  the  corporation  was  doing  business  in  the  State  at  the 
time  of  the  service  of  process  on  the  person  said  to  be  its  agent. 
Nor  did  it  appear  that  the   person  upon  whom   the  process  was 


CORPORATIONS.  393 

served  bore  such  relations  to  the  corporation  as  would  justify  the 
service  upon  him  as  its  agent.  In  the  course  of  the  opinion  in  that 
case,  Air.  Justice  Field,  speaking  for  the  court,  said: 

"It  is  sufficient  to  observe  that  we  are  of  opinion  that  when 
service  is  made  within  the  State  upon  an  agent  of  a  foreign  cor- 
poration, it  is  essential,  in  order  to  support  the  jurisdiction  of  the 
court  to  render  a  personal  judgment,  that  it  should  appear  some- 
where in  the  record — either  in  the  application  for  the  writ,  or  ac- 
companying its  service,  or  in  the  pleadings  or  in  the  finding  of  the 
court — that  the  corporation  was  engager1  in  business  in  the  State. 
The  transaction  of  business  by  the  corporation  in  the  State,  gen- 
eral or  special,  appearing,  and  a  certificate  of  service  of  process  by 
the  proper  officer  on  a  person  who  is  its  agent  there,  would,  in  our 
opinion,  be  sufficient  prima  facie  evidence  that  the  agent  repre- 
sented the  company  in  the  business.  It  would  then  be  open,  when 
the  record  is  offered  as  evidence  in  another  State,  to  show  that  the 
agent  stood  in  no  representative  character  to  the  company,  that 
his  duties  were  limited  to  those  of  a  subordinate  employe,  or  to  a 
particular  transaction,  or  that  his  agency  had  ceased  when  the 
matter  in  suit  arose." 

Here  we  have  the  essentials  named  in  the  above  extract  from 
the  opinion  of  the  court  in  St.  Clair  v.  Cox.  We  have  a  foreign 
corporation  doing  business  in  the  State  of  Tennessee.  We  have 
its  agent  present  within  the  State,  representing  it  by  its  authority 
in  regard  to  the  very  claim  in  dispute,  and  with  authority  to  com- 
promise it  within  certain  limits,  and  his  general  authority  not  lim- 
ited to  a  particular  transaction.  On  the  contrary,  as  seen  from 
his  written  appointment,  his  agency  for  the  company  was  a  con- 
tinuous one,  and  had  been  such  since  1887,  although,  of  course, 
his  agency  was  limited  to  a  certain  department  of  the  business  of 
the  corporation. 

The  case  does  not  hold  that  a  foreign  corporation  cannot  be 
sued  in  any  State  unless  it  be  doing  business  there  and  has  ap- 
pointed an  agent  expressly  that  process  might  be  served  upon  him 
for  it.  Speaking  of  the  service  of  process  upon  an  agent,  the 
learned  justice  thus  continued: 

"In  the  State  where  a  corporation  is  formed,  it  is  not  difficult 


394  PRIVATE    INTERNATIONAL   LAW. 

to  ascertain  who  are  authorized  to  represent  and  act  for  it.  Its 
charter  or  the  statutes  of  the  State  will  indicate  in  whose  hands 
the  control  and  management  of  its  affairs  are  placed.  Directors 
are  readily  found,  as  also  the  officers  appointed  by  them,  to  man- 
age its  business.  But  the  moment  the  boundary  of  the  State  is 
passed  difficulties  arise ;  it  is  not  so  easy  to  determine  who  repre- 
sents the  corporation  there,  and  under  what  circumstances  service 
on  them  will  bind  it." 

This  language  does  not  confine  the  service  to  an  agent  who 
has  been  expressly  authorized  to  receive  service  of  process  upon 
him  in  behalf  of  the  foreign  corporation.  If  that  were  true,  it 
would  be  easy  enough  to  determine  whether  the  person  repre- 
sented the  corporation,  as  unless  he  had  been  so  authorized  he 
would  not  be  its  agent  in  that  matter.  In  the  absence  of  any  ex- 
press authority,  the  question  depends  upon  a  review  of  the  sur- 
rounding facts  and  upon  the  inferences  which  the  court  might 
properly  draw  from  them.  If  it  appear  that  there  is  a  law  of  the 
State  in  respect  to  the  service  of  process  on  foreign  corporations 
and  that  the  character  of  the  agency  is  such  as  to  render  it  fair, 
reasonable  and  just  to  imply  an  authority  on  the  part  of  the  agent 
to  receive  service,  the  law  will  and  ought  to  draw  such  an  infer- 
ence and  to  imply  such  authority,  and  service  under  such  circum- 
stances and  upon  an  agent  of  that  character  would  be  sufficient. 

It  was  held  in  Pennoyer  v.  Neff,  95  U.  S.  714,  that  a  service 
by  publication  in  an  action  in  personam  against  an  individual, 
where  the  defendant  was  a  non-resident  and  had  no  property 
within  the  State,  and  the  suit  was  brought  simply  to  determine 
his  personal  rights  ana  obligations,  was  ineffectual  for  any  pur- 
pose.    The  case  has  no  bearing  upon  the  question  here  presented. 

In  Mexican  Central  Railway  v.  Pinkney,  149  U.  S.  194,  it 
was  held  that  the  person  upon  whom  process  was  served  in  the 
State  of  Texas  was  not  a  "local  agent"  within  the  meaning  of  that 
term  as  contained  in  the  Texas  statute.  It  was  also  held  that  the 
special  appearance  of  the  company  for  the  purpose  of  objecting 
that  the  service  of  process  was  not  good  did  not,  in  the  Federal 
courts,  confer  jurisdiction  as  in  case  of  a  general  appearance. 
There  is  nothing  in  the  case  affecting  this  question. 


CORPORATIONS.  395 

In  Maxwell  v.  Atchison,  Texas  &c.  Railroad,  34  Fed.  Rep. 
286,  the  opinion  in  which  was  delivered  by  Judge  Brown,  United 
States  District  Judge  of  Michigan,  now  one  of  the  Justices  of  this 
court,  the  decision  was  placed  upon  the  ground  that  the  business 
which  the  defendant  carried  on  in  Michigan  was  not  of  such  a 
character  as  to  make  it  amenable  to  suits  within  that  jurisdiction, 
especially  where  the  cause  of  action  in  the  case  arose  within  the 
State  of  Kansas,  and  the  court  also  held  that  the  individual  upon 
whom  the  process  was  served  was  not  an  officer  or  managing 
agent  of  the  railroad  company  within  the  meaning  of  the  act  of 
the  legislature,  nor  was  he  even  a  ticket  agent  of  the  company; 
that  he  was  a  mere  runner,  and  that  service  of  process  upon  him 
for  a  cause  of  action  arising  in  Kansas  gave  no  jurisdiction  to  the 
court. 

In  United  States  v.  American  Bell  Telephone  Co.,  29  Fed. 
Rep.  17,  Judge  Jackson  stated  the  three  conditions  necessary  to 
give  a  court  jurisdiction  in  personam  over  a  foreign  corporation: 
First,  it  must  appear  that  the  corporation  was  carrying  on  its 
business  in  the  State  where  process  was  served  on  its  agent; 
second,  that  the  business  was  transacted  or  managed  by  some 
agent  or  officer  appointed  by  or  representing  the  corporation  in 
such  State;  third,  the  existence  of  some  local  law  making  such 
corporation  amenable  to  suit  there  as  a  condition,  express  or  im- 
plied, of  doing  business  in  the  State. 

In  this  case  the  company  was  doing  business  in  the  State. 
The  agent  was  in  the  State  under  the  authority  and  by  the  ap- 
pointment of  the  company.  He  was  authorized  to  inquire  into 
and  compromise  the  particular  matters  in  dispute  between  the 
corporation  and  the  policyholder,  and  he  was  no  mere  special  em- 
ploye engaged  by  the  company  for  this  particular  purpose.  And 
there  was  a  local  law,  that  of  1887,  providing  for  service.  It  has 
been  recently  held  in  this  court  that  as  to  a  Circuit  Court  of  the 
United  States,  where  a  corporation  is  doing  business  in  a  State 
other  than  the  one  of  its  incorporation,  service  may  sometimes  be 
made  upon  its  regularly  appointed  agents  there,  even  in  the  ab- 
sence of  a  state  statute  conferring  such  authority.  Barrozv 
Steamship  Co.  v.  Kane,  170  U.  S.  100. 


396  PRIVATE   INTERNATIONAL  LAW. 

Although  the  legislature,  by  the  act  of  1875,  provided  for 
service  of  process  upon  a  particular  person,  (the  secretary  of 
state,)  in  behalf  of  a  foreign  corporation,  and  the  company  had, 
pursuant  to  the  provisions  of  the  act,  duly  appointed  that  officer 
its  agent  to  receive  process  for  it,  nevertheless  the  legislature  pro- 
vided, by  law  in  1887,  for  service  upon  other  agents,  and  the  com- 
pany continued  thereafter  to  do  business  in  the  State.  Continu- 
ing to  do  business,  the  company  impliedly  assented  to  the  terms 
of  that  statute,  at  least  to  the  extent  of  consenting  to  the  service 
of  process  upon  an  agent  so  far  representative  in  character  that 
the  law  would  imply  authority  on  his  part  to  receive  such  service 
within  the  State.  Merchants'  Manufacturing  Co.  v.  Grand 
Trunk  Railway,  13  Fed.  Rep.  358,  359.  When  the  service  of 
which  plaintiff  in  error  complains  was  made,  the  act  of  1875  had 
been  repealed  by  chapter  160  of  the  laws  of  1895,  and  the  com- 
pany had  never  appointed  an  agent  under  chapter  166  of  the  laws 
of  that  year.  There  was,  therefore,  m  one  upon  whom  process 
could  be  served  in  behalf  of  the  companv,  excepting  under  the 
act  of  1887,  unless  the  plaintiff  in  error  be  right  in  the  claim  that, 
by  appointing  the  secretary  of  state  its  agent  to  receive  process 
under  the  act  of  1875,  a  contract  was  created,  and  the  secretary 
of  state  remained  such  agent,  notwithstanding  subsequent  statutes 
regulating  the  subject,  or  even  repealing  the  act.  We  will  refer 
to  that  claim  hereafter.  If  by  the  statute  of  the  State  provision 
were  made  for  the  appointment  of  an  agent  bv  the  company,  upon 
whom  process  might  be  served,  and  the  company  had  appointed 
such  an  agent,  and  there  was  no  other  statute  authorizing  service 
of  process  upon  an  agent  of  the  company  other  than  the  one  so 
appointed,  we  do  not  say  that  service  upon  any  other  agent  of  the 
company  would  be  good.  This  is  not  such  a  case,  and  the  ques- 
tion is  not  here  open  for  discussion. 

A  vast  mass  of  business  is  now  done  throughout  the  country 
by  corporations  which  are  chartered  by  States  other  than  those 
in  which  they  are  transacting  part  of  their  business,  and  justice 
requires  that  some  fair  and  reasonable  means  should  exist  for 
bringing  such  corporations  within  the  jurisdiction  of  the  courts 


CORPORATIONS.  397 

of  the  State  where  the  business  was  done,  out  of  which  the  dispute 
arises. 

It  was  well  said  in  Railroad  Company  v.  Harris,  12  Wall.  65, 
83,  by  Mr.  Justice  Swayne,  in  speaking  for  the  court,  in  regard  to 
service  on  an  agent,  that  "When  this  suit  was  commenced,  if  the 
theory  maintained  by  the  counsel  for  the  plaintiff  in  error  be  cor- 
rect, however  large  or  small  the  cause  of  action,  and  whether  it 
were  a  proper  one  for  legal  or  equitable  cognizance,  there  could 
be  no  legal  redress  short  of  the  seat  of  the  company  in  another 
State.  In  many  instances  the  cost  of  the  remedy  would  have 
largely  exceeded  the  value  of  its  fruits.  In  suits  local  in  their 
character,  both  at  law  and  in  equity,  there  could  be  no  relief.  The 
result  would  be,  to  a  large  extent,  immunity  from  all  legal  respon- 
sibility." The  court  in  view  of  these  facts  was  of  opinion  that 
Congress  intended  no  such  result. 

In  holding  the  service  of  process  upon  this  particular  agent 
sufficient  in  this  instance  and  so  far  as  the  character  of  the  agent 
is  concerned,  we  do  not,  as  we  have  already  intimated,  hold  that 
service  upon  any  agent  mentioned  in  the  act  of  1887  would  be 
good.     That  question  is  not  before  us. 

Upon  the  question  relative  to  the  alleged  creation  of  a  con- 
tract between  the  State  and  the  company,  by  the  appointment  of 
the  secretary  of  state  as  its  agent  under  the  act  of  1875,  to  receive 
process  for  it,  we  have  no  doubt. 

The  act  of  1875  stated  the  terms,  upon  compliance  with  which 
a  foreign  corporation  should  be  permitted  to  do  business  within 
the  State  of  Tennessee.  There  was  however  no  contract  that 
those  conditions  should  never  be  altered,  and  when  pursuant  to 
the  provisions  of  the  act  of  1875  this  power  of  attorney  was  given 
by  the  corporation,  the  State  did  not  thereby  contract  that  during 
all  of  the  period  within  which  the  company  might  do  business  with- 
in that  State  no  alteration  or  modification  should  be  made  regard- 
ing the  conditions  as  to  the  service  of  process  upon  the  company. 
When  therefore  in  1887  the  legislature  passed  another  act  and 
therein  provided  for  the  service  of  process,  no  contract  between 
the  State  and  the  corporation  was  violated  thereby,  or  any  of  its 
obligations  in  anywise  impaired,  for  the  reason  that  no  contract 


398  PRIVATE    INTERNATIONAL   LAW. 

had  ever  existed.  Instead  of  a  contract,  it  was  a  mere  license 
given  by  the  State  to  a  foreign  corporation  to  do  business  within 
its  limits  upon  complying  with  the  rules  and  regulations  provided 
for  by  law.  That  law  the  State  was  entirely  competent  to  change 
at  any  time  by  a  subsequent  statute  without  b<4ng  amenable  to  the 
charge  that  such  subsequent  statute  impaired  the  obligation  of  a 
contract  between  the  State  and  the  foreign  corporation  doing 
business  within  its  borders  under  the  former  act. 

Statutes  of  this  kind  reflect  and  execute  the  general  policy  of 
the  State  upon  matters  of  public  interest,  and  each  subsequent 
legislature  has  equal  power  to  legislate  upon  the  same  subject. 
The  legislature  has  power  at  any  time  to  repeal  or  modify  the  act 
granting  such  permission,  making  proper  provision  when  neces- 
sary in  regard  to  the  rights  of  property  of  the  company  already 
acquired,  and  protecting  such  rights  from  any  illegal  interference 
or  injury.  Douglas  v.  Kentucky,  168  U.  S.  488.  The  cases 
showing  the  right  of  a  .State  to  grant  or  refuse  permission  to  a 
foreign  corporation  of  this  kind  to  do  business  within  its  limits  are 
collected  in  Hooper  v.  California,  155  U.  S.  648,  652. 

Having  the  right  to  impose  such  terms  as  it  may  zee  fit  upon 
a  corporation  of  this  kind  as  a  condition  upon  which  it.  will  permit 
the  corporation  to  do  business  within  its  borders,  the  State  is  not 
thereafter  and  perpetually  confined  to  those  conditions  which  it 
made  at  the  time  that  a  foreign  corporation  may  have  availed  it  • 
self  of  the  right  given  by  the  State,  but  it  may  alter  them  at  its 
pleasure.  In  all  such  cases  there  can  be  no  contract  springing 
from  a  compliance  with  the  terms  of  the  act,  and  nj  irrepealable 
law,  because  they  are  what  is  termed  "governmental  subjects," 
and  hence  within  the  category  which  permits  the  legislature  of  a 
State  to  legislate  upon  those  subjects  from  time  to  time  as  the 
public  interests  may  seem  to  it  to  require. 

As  these  statutes  involve  public  interests,  legislation  regard- 
ing them  are  necessarily  public  laws,  and  as  stated  in  Newton  v. 
Commissioners,  100  U.  S.  548,  559;  "Every  succeeding  legisla- 
ture possesses  the  same  jurisdiction  and  power  with  respect  to 
them  as  its  predecessors.  The  latter  have  the  same  power  of  re- 
peal and  modification  which  the  former  had  of  enactment,  neither 


IMMOVABLES.  399 

more  nor  less.  All  occupy,  in  this  respect,  a  footing  of  perfect 
equality.  This  must  necessarily  be  so  in  the  nature  of  things.  It 
is  vital  to  the  public  welfare  that  each  one  should  be  able  at  all 
times  to  do  whatever  the  varying  circumstances  and  present  exi- 
gencies touching  the  subject  involved  may  require.  A  different 
result  would  be  fraught  with  evil." 

The  same  principle  is  found  in  the  following  cases :  Fertil- 
izing Company  v.  Hyde  Park,  97  U.  S.  659;  Butchers'  Union 
Company  v.  Crescent  City,  in  U.  S.  746;  Boyd  v.  Alabama,  94 
U.  S.  645  ;  Douglas  v.  Kentucky,  168  U.  S.  488. 

When  the  legislature  of  Tennessee  therefore  permitted  the 
company  to  do  business  within  its  State  on  appointing  an  agent 
therein  upon  whom  process  might  be  served,  and  when  in  pur- 
suance of  such  provisions  the  company  entered  the  State  and  ap- 
pointed the  agent,  no  contract  was  thereby  created  which  would 
prevent  the  State  from  thereafter  passing  another  statute  in  re- 
gard to  service  of  process,  and  making  such  statute  applicable  to 
a  company  already  doing  business  in  the  otate.  In  other  words, 
no  contract  was  created  by  the  fact  that  the  company  availed  it- 
self of  the  permission  to  do  business  within  the  State  under  the 
provisions  of  the  act  of  1875. 

Upon  the  case  as  presented  in  this  record,  we  are  of  opinion 
that  the  service  upon  the  person  in  question  was  a  good  service  in 
behalf  of  the  corporation.  The  judgment  of  the  Supreme  Court 
of  Tennessee  is  therefore 

Affirmed. 


IMMOVABLES. 
BAUM  v.  BTRCHALL,  150  PA.  ST.  164,  (1892). 
Opinion  by  Mr.  Justice  Williams  July  13,  1892. 

The  defendants  are  and  were  at  the  date  of  the  bond  on  which 
this  judgment  was  entered  husband  and  wife.  In  the  winter  of 
1884-5  tney  uved  *n  this  state  near  Philadelphia.  Desiring  to  re- 
move to  Delaware  they  visited  Dover  and  its  vicinity  in  February 
in  1885  in  search  of  a  suitable  farm  on  which  to  make  their  hoine. 
Among  the  farms  examined  by  them  was  that  of  Baum  the  plain- 


400  PRIVATE    INTERNATIONAL  LAW. 

tiff,  from  whom  they  got  the  price  and  terms  cf  payment  at  which 
he  would  sell.  They  then  returned  to  their  home  near  Philadel- 
phia; but  H.  C.  Birchall,  the  husband,  soon  after  returned  to 
Dover  and  in  the  name,  and  by  the  direction,  of  his  wife  made  a 
contract  with  Baum  for  his  farm  and  paid  one  hundred  dollars 
hand-money  upon  it.  It  was  to  be  closed  as  soon  as  the  title  pa- 
pers could  be  conveniently  prepared,  pending-  which  Birchall  came 
back  to  his  home  in  this  state.  Soon  after,  a  bond  and  mortgage 
to  secure  so  much  of  the  purchase  money  due  Baum  as  was  not 
to  be  paid  on  delivery  of  the  deed,  were  sent  by  mail  to  the  Birch- 
alls  for  execution.  Both  instruments  were  duly  signed  and  sealed 
in  this  state,  after  whicn  Birchall  took  them,  together  with  his 
wife's  check  for  five  thousand  dollars,  the  amount  to  be  paid  in 
hand,  and  went  to  Dover  to  meet  Baum  and  complete  the  transac- 
tion. He  received  the  deed  made  to  his  wife,  delivered  for  her  the 
check  for  five  thousand  dollars  and  the  bond  and  mortgage  to  se- 
cure the  balance  of  the  purchase  money.  Soon  after,  the  Birchalls 
removed  to  their  new  home  and  continued  to  reside  on  the  farm 
for  one  and  a  half  years,  when  they  sold  it  subject  to  the  mortgage 
and  returned  to  this  state.  Their  vendee  did  not  pay  principal  or 
interest  upon  the  mortgage,  and,  as  the  result  of  legal  proceedings 
upon  it,  the  farm  was  brought  to  sale  by  the  sheriff.  The  pro- 
ceeds of  the  sale  were  not  enough  to  pay  the  mortgage  debt,  and 
this  judgment  was  entered  upon  the  bond  for  the  purpose  of  col- 
lecting from  Mrs.  Birchall,  in  this  state,  the  balance  still  due  on 
the  purchase  money  of  the  farm.  She  then  made  application  to 
open  it  on  the  ground  that  the  fact  of  her  having  signed  the  bond 
in  this  state  made  it  a  Pennsylvania  contract ;  and  that  because  of 
her  disability  it  could  not  be  enforced  against  her  except  as  to  the 
land  of  which  it  was  part  of  the  purchase  money.  The  court  be- 
low so  held  and  the  correctness  of  this  ruling  is  the  only  question 
presented  by  this  appeal. 

If  it  be  conceded  that  the  bond  and  mortgage  were  executed 
in  this  state,  yet  it  appears  upon  their  face  that  they  were  to  be 
performed  in  the  state  of  Delaware,  and  the  general  rule  is  that 
in  such  cases  the  instrument  is  governed  as  to  its  validity,  nature, 
obligation  and  interpretation,  by  the  laws  of  the   place  where   it 


IMMOVABLES.  401 

is  to  be  performed :  Story  on  the  Conflict  of  Laws,  §  280 ;  2  Kent's 
Com.,  459.  Interest,  which  is  the  ordinary  measure  of  compen- 
sation for  delay  in  performance,  is  to  be  computed  according  to 
the  law  of  the  place  of  payment :  Brown  v.  Camden  and  Atlantic 
Railroad  Co.,  83  Pa.  316.  The  remedy  and  the  effect  to  be  given 
to  any  existing  disability  in  the  maker  of  the  instrument  are  also 
to  be  determined  by  the  law  of  the  place  of  payment:  Hill  v. 
Chase,  143  Mass.  129.  The  same  rule  applies  where  the  contract 
is  made  by  correspondence  through  the  mails  or  by  telegraph. 
Thus  it  was  held  that  if  one  orders  goods  from  another  state  by 
mail,  which  are  sent  by  a  carrier,  the  contract  is  made  where  the 
order  is  received  and  the  goods  delivered  to  the  carrier  for  the 
buyer;  and  the  law  of  that  state  will  govern  the  contract:  Milli- 
ken  v.  Pratt,  125  Mass.  374.  The  courts  of  this  state  will  admin- 
ister in  such  cases  the  lex  loci  contractus  as  against  one  under  dis- 
ability: Evans  v.  Cleary,  125  Pa.  204.  But  this  case  stands  on 
still  stronger  ground.  Delivery  is  an  essential  part  of  the  execu- 
tion of  any  instrument.  It  is  not  enough  to  sign  and  seal  a  bond. 
It  is  effectual  only  when  it  is  delivered  to  the  party  interested  in 
it,  or  to  some  one  for  him.  The  bond  might  have  been  signed 
wherever  it  was  most  convenient  for  the  obligor  to  give  attention 
to  it,  but  it  was  an  ineffectual  and  useless  paper  until  delivery  to 
the  obligor.  The  delivery  was  made  in  Delaware  where  it  was  to 
be  performed.  It  was  made  a  binding  obligation,  its  execution 
was  completed  in  that  state,  and  for  this  further  reason  it  must 
be  governed  by  the  laws  of  that  state. 

So  far  we  have  considered  the  instrument  as  a  contract  with- 
out regard  to  the  character  of  the  subject-matter ;  but,  upon  look- 
ing into  the  transaction  of  which  it  is  a  part,  we  learn  that  it  is  a 
contract  relating  to  real  property.  Now,  the  rule  relating  to  such 
contracts  has  been  well  settled  from  the  earliest  days  of  the  Eng- 
lish common  law.  Real  property  cannot  attend  the  person  of  the 
owner  as  he  goes  from  one  jurisdiction  to  another.  It  is  fixed, 
immovable  and  necessarily  under  the  law  of  the  place  where  it 
lies.  Contracts  relating  to  it  must  therefore  necessarily  be  gov- 
erned by  the  lex  rex  sitae:  Story  on  the  Conflict  of  Laws,  424.  It 
seems  that  the  law  of  the  state  where  Baum's  farm  was  located 


402  PRIVATE   INTERNATIONAL  LAW. 

makes  a  married  woman  personally  liable  on  he/  bond  given  for 
property  bought  by  her.  Mrs.  Birchall  went  there  to  look  at  and 
treat  for  this  farm.  She  contracted  for  it  through  her  husband 
in  that  state.  She  received  her  deed  and  delivered  her  money, 
her  bond  and  mortgage,  in  complete  execution  of  her  contract 
there  where  tne  land  was.  The  law  of  tnat  state  determines  tne 
effect  of  the  conveyance  received  by  her,  and  of  the  bond  and 
mortgage  given  by  her  to  secure  the  purchase  price  of  the  land  she 
bought.  We  have  therefore  a  contract  made  and,  in  legal  effect, 
delivered  in  Delaware;  for  the  purchase  of  real  property  in  that 
state ;  upon  which  according  to  the  laws  of  that  state  the  defendant 
is  personally  liable  notwithstanding  her  coverture.  In  passing 
upon  it  here,  our  courts  will  secure  to  her  the  advantages,  and 
enforce  against  her  the  obligations  of  her  contract  in  accordance 
with  the  laws  of  that  state.  This  conclusion  requires  us  to  re- 
verse the  order  of  the  court  below  opening  the  judgment,  and  to 
restore  it  to  the  records. 

The  order  is  reversed  and  set  aside  accordingly. 


MOVABLES. 
CRAPO  v.  KELLY,  16  WALL.  610,  (1872). 
Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

Omitting  all  superfluous  circumstances,  the  facts  necessary  to 
present  the  question  on  the  merits  are  these :  On  the  23d  of  Feb- 
ruary, 1861,  the  insolvent  court  of  Massachusetts  appointed 
Crapo  and  others  assignees  in  insolvency  of  Gibbs  &  Jenny, 
and  the  judge  of  that  court  executed  and  delivered  to  them  an 
assignment  of  all  the  personal  property  of  Gibbs  &  Jenny.  At 
this  date  Gibbs-  &  Jenny  were  the  owners  of  the  ship  Arctic,  an 
American  vessel  registered  at  the  port  of  Fairhaven,  in  the  dis- 
trict of  New  Bedford,  in  the  State  of  Massachusetts,  which  vessel 
was  then  on  the  high  seas,  to  wit,  in  the  Pacific  Ocean.  On  the 
30th  day  of  the  following  April  this  vessel  arrived  in  the  port  of 
New  York,  and  was  at  once  seized  as  the  property  of  Gibbs  & 
Jenny,  by  an  attachment  issued  at  the  suit  of  one  Robinson,  a 
creditor  of  Gibbs  &  Jenny,  residing  in  New  York.     On  the  next 


MOVABLES.  403 

day  but  one  after  the  arrival  of  the  vessel  Crapo  came  to  New 
York  and  took  possession  of  her,  subject  to  the  possession  of 
Kelly,  the  sheriff.  Crapo  represents  the  title  under  the  Massa- 
chusetts assignment,  which  then,  and  at  all  times  since,  he  has 
sought  to  enforce.  Kelly  claims  under  the  New  York  attach- 
ment. 

The  question  is,  which  proceeding  gave  the  better  title. 

Certain  propositions  relating  to  the  question  are  not  disputed. 

i.  If  the  assignment  under  which  Crapo  claims  had  been  the 
personal  act  of  Gibbs  &  Jenny,  it  would  have  passed  the  title  to 
the  vessel  wherever  she  might  have  been  at  the  time  of  its  exe- 
cution. 

2.  If  the  vessel  at  the  time  of  the  execution  of  the  assign- 
ment had  been  within  the  territorial  limits  of  Massachusetts,  the 
assignment,  although  not  the  personal  act  of  Gibbs  &  Jenny, 
would  have  divested  their  title  and  that  of  all  persons  claiming 
under  them,  provided  diligence  has  been  used  to  reduce  the  vessel 
to  possession. 

3.  If  the  vessel  had  been  in  the  port  of  New  York  at  the 
time  of  the  execution  of  the  insolvent  assignment  (there  being  no 
personal  assignment),  and  had  subsequently  been  seized  there 
under  attachment  proceedings  by  a  New  York  creditor,  such  at- 
tachment proceeding  would  have  held  the  vessel  as  against  the 
prior  insolvent  assignment. 

The  first  of  these  propositions  results  from  the  fact  that  per- 
sonal property,  wherever  it  may  be,  is  under  the  personal  control 
of  its  owner,  and  the  title  passes  by  his  actual  transfer.  The  sec- 
ond is  based  upon  the  idea  that  the  property  being  actually  present 
and  under  the  control  of  the  law,  passes  by  act  of  the  law.  The 
third  proposition  assumes  that  a  transfer  by  legal  proceeding  pos- 
sesses less  solemnity  than  one  made  by  the  owner  himself;  that 
each  nation  is  entitled  to  protect  its  own  citizens,  and  that  the 
remedy  by  law  taken  by  its  citizens  having  the  actual  possession 
of  the  corpus,  ought  to  prevail  over  a  title  by  law  from  another 
State,  which  is  not  accompanied  by  such  possession.  This  prin- 
ciple authorizes  the  Massachusetts  assignee  to  hold  the  property 


404  PRIVATE  INTERNATIONAL,  LAW. 

when  in  Massachusetts,  and  the  New  York  creditor  to  seize  it 
when  it  is  in  New  York,  under  the  circumstances  stated. 

The  present  case  is  deficient  in  each  of  the  elements  neces- 
sary to  bring  the  vessel  within  the  range  of  the  foregoing  princi- 
ples. She  was  not  transferred  by  the  personal  act  of  the  owner 
She  was  not  literally  within  the  territory  of  Massachusetts  when 
the  insolvent  assignment  took  effect ;  and,  thirdly,  she  was  not  in 
the  port  of  New  York. 

The  question  then  arises,  while  thus  upon  the  high  seas  was 
she  in  law  within  the  territory  of  Massachusetts.  If  she  was. 
the  insolvent  title  will  prevail. 

It  is  not  perceived  that  this  vessel  can  be  said  to  be  upon  Uni- 
ted States  territory,  or  within  United  States  jurisdiction,  or  sub- 
ject to  the  laws  of  the  United  States  regulating  the  transfer  of 
property,  if  such  laws  there  may  be.  Except  for  the  purposes  and 
to  the  extent  to  which  these  attributes  have  been  transferred  to 
the  United  States,  the  State  of  Massachusetts  possesses  all  the 
rights  and  powers  of  a  sovereign  State.  By  her  own  consent,  as 
found  in  article  I  of  the  Constitution  of  the  United  States,  she 
has  abandoned  her  right  to  wage  war,  to  coin  money,  to  make 
treaties,  and  to  do  certain  other  acts  therein  mentioned.  None  of 
the  subjects  there  mentioned  affect  the  question  before  us.  The 
third  article  of  that  instrument  extends  the  judicial  power  of  the 
United  States  "to  all  cases  of  admiralty  and  maritime  jurisdic- 
tion." This  gives  the  power  to  the  courts  of  the  United  States  to 
try  those  cases  in  which  are  involved  questions  arising  out  of 
maritime  affairs,  and  of  crimes  committed  on  the  high  seas.  To 
bring  a  transaction  within  that  jurisdiction,  it  must  be  not  simply 
a  transaction  which  occurred  at  sea,  as  the  making  of  a  contract, 
but  one  in  which  the  question  itself  is  of  a  maritime  nature,  or 
arises  out  of  a  maritime  affair,  or  it  must  be  a  tort  or  crime  com- 
mitted on  the  high  seas.  Over  such  cases  the  United  States 
courts  have  jurisdiction;  that  is,  they  are  authorized  to  hear  and 
determine  them.  No  rule  of  property  is  thereby  established 
This  remains  as  it  would  have  been  had  no  such  authority  been 
given  to  the  United  States  court. 

To  Congress  is  also  given  power  "to  define  and  punish  pira- 


MOVABLES.  405 

cies  and  felonies  committed  on  the  high  seas,  and  offences  against 
the  law  of  nations."  It  will  scarcely  be  claimed  that  the  title  to 
property  could  be  affected  by  this  provision.  Nor  does  the  cir- 
cumstance that  the  Arctic  sailed  under  the  flag  of  the  United  States 
and  was  entitled  to  the  protection  of  that  government  against  in- 
sult or  injury  from  the  citizens  or  ships  of  other  nations,  touch 
the  present  point.  None  of  these  instances  are  like  that  of  the 
passage  of  a  bankrupt  law  by  the  United  States,  which  acts  di- 
rectly upon  the  property  of  all  the  citizens  of  all  the  States,  wher- 
ever it  may  be.  Had  the  claim  of  either  party  to  this  vessel  been 
based  upon  a  proceeding  under  that  statute,  the  title  would  have 
been  complete,  if  the  property  had  been  within  the  territory  or 
jurisdiction  of  any  of  the  States  of  the  Union. 

It  is  not  perceived,  therefore,  that  the  relation  of  Massachu- 
setts to  the  Union  has  any  effect  upon  the  title  to  this  vessel.  It 
stands  as  if  that  State  were  an  independent  sovereign  State,  un- 
connected with  the  other  States  of  the  Union.  The  question  is 
the  same  as  if  this  assignment  had  been  made  in  London  by  a 
British  insolvent  court,  adjudicating  upon  the  affairs  of  a  British 
subject. 

We  are  of  the  opinion,  for  the  purpose  we  are  considering, 
that  the  ship  Arctic  was  a  portion  of  the  territory  of  Massachu- 
setts, and  the  assignment  by  the  insolvent  court  of  that  State 
passed  the  title  to  her,  in  the  same  manner  and  with  the  like  effect 
as  if  she  had  been  physically  within  the  bounds  of  that  State  when 
the  assignment  was  executed. 

The  rule  is  thus  laid  down  by  Mr.  Wheaton  in  his  treatise  on 
International  Law :  "Both  the  public  and  private  vessels  of  every 
nation  on  the  high  seas,  and  out  of  the  territorial  limits  of  any 
other  State,  are  subject  to  the  jurisdiction  of  the  state  to  which 
they  belong.  Vattel  says  that  the  domain  of  a  nation  extends  to 
all  its  just  possessions,  and  by  its  possessions  we  are  not  to  un- 
derstand its  territory  only,  but  all  the  rights  it  enjoys.  And  he 
also  considers  the  vessels  of  a  nation  on  the  high  seas  as  portions 
of  its  territory.  Grotius  holds  that  sovereignty  may  be  acquired 
over  a  portion  of  the  sea."  As  an  illustration  of  the  proposition 
that  the  ship  is  a  portion  of  the  territory  of  the  State,  the  author 


406  PRIVATE   INTERNATIONAL,  LAW. 

proceeds :  "Every  State  has  an  incontestable  right  to  the  service 
of  all  its  members  in  the  national  defence,  but  it  can  give  effect  to 
this  right  only  by  lawful  means.  Iti  right  to  reclaim  the  military 
service  of  its  citizens  can  be  exercised  only  within  its  own  terri- 
tory, or  in  some  place  not  subject  to  the  jurisdiction  of  any  other 
nation.  The  ocean  is  such  a  place,  and  any  state  may  unquestion- 
ably there  exercise,  on  board  its  own  vessels,  its  right  of  compell- 
ing the  military  or  naval  services  of  its  subjects." 

Chancellor  Kent,  in  his  Commentaries,  says :  "The  high  seas 
are  free  and  open  to  all  the  world,  and  the  laws  of  every  state  or 
nation  have  there  a  full  and  perfect  operation  upon  the  persons 
and  property  of  the  citizens  or  subjects  of  such  a  state  or  nation." 
"No  nation  has  any  right  or  jurisdiction  at  sea,  except  it  be  over 
the  persons  of  its  subjects,  in  its  own  public  and  private  vessels ; 
and  so  far  territorial  jurisdiction  may  be  conceded  as  preserved, 
for  the  vessels  of  a  nation  are  in  many  respects  considered  as  por- 
tions of  its  territory,  and  persons  on  board  are  protected  and  gov- 
erned by  the  law  of  the  country  to  whhh  the  vessel  belongs." 

Wharton  says:  "A  ship  in  the  open  sea  is  regarded  by  the 
law  of  nations  as  a  part  of  the  territory  whose  flag  such  ship  car- 
ries." "By  this  (he  says)  may  be  explained  several  cases  quoted 
as  establishing  the  lex  domicilii,  though  they  are  only  sustainable 
on  the  ground  that  the  ship  at  sea  is  part  of  the  territory  whose 
flag  she  bears.  ...  In  respect  to  principle,  ships  at  sea  and 
the  property  in  them,  must  be  viewed  as  part  of  the  country  to 
which  they  belong." 

The  modern  German  law  is  to  the  same  point.  Bluntschil, 
in  his  Modeme  Volkerrect,  says:  "Ships  are  to  be  regarded  as 
floating  sections  of  the  land  to  which  they  nationally  belong,  and 
whose  flag  they  are  entitled  to  carry." 

Bischof,  in  his  Grundriss  des  positiven  intemationalen  See- 
rechts,  says:  "Every  state  is  free  on  the  seas,  so  that  its  ships  are 
to  be  regarded  as  floating  sections  of  its  country,  territoria  clausa; 
la  continuation  on  la  prorogation  du  territoire,  and  those  on  board 
such  ships  in  foreign  waters  are  under  their  laws  and  orotection. 
This  even  applies  to  children  born  to  subjects  on  such  ships." 

Wildman,  in  his  treatise  on  International  Law,  says :  "Prov- 


MOVABLES.  407 

inces  and  colonies,  however  distant,  form  a  part  of  the  territory 
of  the  parent  state.  So  of  the  ships  on  the  high  seas.  The  rights 
of  sovereignty  extend  to  all  persons  and  things  not  privileged,  that 
are  within  the  territory." 

The  adjudicated  cases  in  this  country  are  to  the  same  effect. 
Itv  Plestoro  v.  Abraham,  it  was  held  that  where  a  British  subject, 
being  indebted,  left  England,  and  while  on  his  voyage  to  this 
country  and  before  he  arrived  here,  he  was,  under  the  laws  of 
Great  Britain,  declared  a  bankrupt,  and  provisional  assignees  were 
appointed,  it  was  held  that  the  assignment  to  such  assignees  di- 
vested the  title  of  the  bankrupt  to  the  personal  property  brought 
with  him  to  this  country.  In  giving  his  opinion  upon  +he  motion 
to  dissolve  the  injunction,  Chancellor  Walworth  said:  "In  the 
case  of  Holmes  v.  Remsen,  Chancellor  Kent  decided  that  an  as- 
signment by  the  commissioners  of  bankruptcy  in  England,  oper- 
ated as  a  legal  transfer  of  the  personal  property  and  choses  in  ac- 
tion of  the  bankrupt  in  this  country.  Even  as  against  a  subse- 
quent attachment  taken  out  here  by  an  American  creditor,  under 
the  act  against  absconding  and  absent  debtors.  It  is  doubtful 
whether  that  decision,  to  its  full  extent,  can  be  sustained.  It  was 
strongly  opposed  and  ably  questioned  by  Piatt,  in  a  case  between 
the  same  parties,  which  subsequently  came  before  the  Supreme 
Court.  It  also  stands  in  opposition  to  the  opinions  of  the  S^ate 
courts  in  Connecticut,  Massachusetts,  Pennsylvania,  Maryland, 
and  in  both  of  the  Carolinas,  *  *  *  and  to  the  decision  of  the 
Supreme  Court  of  the  United  States,  in  Harrison  v.  Sterry,  and 
in  Ogden  v.  Saunders.  But  the  case  before  me  (he  proceeds) 
steers  clear  of  all  these  decisions.  In  the  cases  cited  the  contest 
was  between  foreign  assignees  and  domestic  creditors,  claiming 
under  the  laws  of  the  country  where  the  property  was  situated 
and  where  the  suits  were  brought.  The  question  in  these  cases 
was,  whether  the  personal  property  was  to  be  considered  as  hav- 
ing locality  for  the  purpose  of  giving  a  remedy  to  creditors  resid- 
ing in  countries  where  the  property  was  in  fact  situated  at  the 
time  of  the  foreign  assignment.  In  this  case  the  controversy  is 
between  the  bankrupt  and  his  assignees  and  creditors,  all  residing 
in  the  country  under  whose  laws  the  assignment  was  made.    Even 


408  PRIVATE    INTERNATIONAL   LAW. 

the  property  itself,  at  the  time  of  the  assignment,  was  construc- 
tively within  the  jurisdiction  of  that  country,  being  on  the  high 
seas  in  the  actual  possession  of  a  British  subject.  Under  such 
circumstances  the  assignment  had  t'-.e  effect  to  change  the  prop- 
erty and  divest  the  title  as  effectually  as  if  the  same  had  been  sold 
in  England  under  an  execution  against  him,  or  he  had  voluntarily 
conveyed  the  same  to  the  assignee  for  the  benefit  of  his  creditors." 
The  case  was  carried  to  the  Court  of  Errors  of  the  State  of 
New  York,  that  body  being  composed  of  the  chancellor,  the 
judges  of  the  Supreme  Court,  the  lieutenant-governor,  and  the 
members  of  the  senate.  The  record  did  not  show  distinctly  that 
the  vessel  which  brought  the  goods  was  a  British  ship,  and  on'  this 
point  the  chancellor's  order  was  reversed.  Marcy,  justice,  and 
Throop,  lieutenant-governor,  eminent  men  and  able  judges,  held 
that  the  assignment  in  Great  Britain  divested  the  title  of  the  bank- 
rupt to  personal  property  in  this  country,  and  that  his  property  in 
a  vessel  on  the  high  seas  was  likewise  transferred.  Maynard, 
Oliver  and  Stebbins  held  that,  as  to  the  personal  property  of  the 
bankrupt  in  this  country,  the  assignment  did  not  effect  a  transfer 
of  the  same,  even  as  between  the  asignee  and  the  bankrupt.  May  • 
nard  and  Stebbins  held  that  to  produce  the  transfer,  under  such 
circumstances,  of  the  property  of  a  British  bankrupt,  which  was 
on  the  high  seas  at  the  time  of  the  assignment,  it  must  distinctly 
appear  that  the  vessel  was  a  British  vessel,  and  thus  the  property 
was  within  British  jurisdiction.  It  is  fairly  to  be  inferred  that  if 
it  had  appeared  that  the  vessel  was  a  British  vessel  the  Chancel- 
lor's order  would  have  been  sustained.  Thus  Mr.  Ogden,  who 
argued  for  the  reversal  of  the  order,  said :  "Had  the  goods  been 
on  board  a  British  vessel  it  would  have  been  so  averred.  In  the 
absence  of  such  averment  the  fair  conclusion  is  that  the  vessel  in 
which  they  were  embarked  was  American ;  and  if  so,  the  goods 
were  as  much  within  our  jurisdiction  as  if  landed  in  a  storehouse 
at  New  York."  Senator  Maynard,  in  his  opinion,  repeats  this 
statement.  He  says :  "The  presumption  was  as  fair  that  it  was 
on  board  of  an  American  ship  as  that  it  was  on  a  British  ship ;  and 
if  so,  it  was,  at  the  date  of  the  assignment,  within  the  jurisdiction 
of  this  country."     Stebbins,  senator,  says:  "I  hold,  therefore,  that 


MOVABLES.  409 

if  this  property  was  laden  on  board  an  American  vessel,  and  on 
the  high  seas  at  the  time  of  the  assignment,  it  was  within  the  ju- 
risdiction of  the  United  States,  and  could  no  more  pass  by  that 
assignment  than  if  lodged  in  the  custom-house  in  New  York ;  and 
if  laden  on  board  a  British  vessel  that  fact  should  have  been 
averred  by  the  asignee  as  essential  to  his  title."  The  chancellor's 
order  was  reversed,  and  apparently  upon  this  ground,  that  it  did 
not  actually  appear  that  the  ship  on  which  the  goods  were  laden 
was  a  British  ship.  The  principle  of  the  decision  was  in  accord- 
ance with  the  principle  announced  by  the  chancellor,  as  already 
quoted,  to  wit,  that  the  presence  of  the  goods  in  a  British  ship 
on  the  high  seas,  continued  them  within  British  jurisdiction.  The 
limited  application  given  to  this  decision  in  Johnson  v.  Hunt,  is 
scarcely  sustained  by  the  facts.  None  of  the  other  cases  cited  are 
cases  of  goods  on  the  ship  of  the  state  or  nation  of  the  insolvent 
whose  goods  are  the  subject  of  the  assignment.  They  are  cases 
where  the  property  was  confessedly  within  another  jurisdiction 
and  hence  the  conflict. 

Judge  Story  says,  upon  this  case:  "It  is  difficult  to  perceive 
how  the  doctrine  of  the  chancellor,  as  to  the  operation  of  the  Brit- 
ish bankrupt  laws  upon  the  British  subjects  and  their  property 
i«  transitu  can  be  answered.  The  transfer  must  be  admitted  to  be 
operative  to  divest  the  bankrupt's  title  to  the  extent  of  an  estoppel 
as  to  his  own  personal  claim  in  opposition  to  it,  for  the  law  of 
America,  be  it  what  it  may,  had  not  then  operated  upon  it.  It 
was  not  locally  within  our  jurisdiction.  No  one  could  doubt  the 
right  of  the  assignee  to  personal  property  locally  in  England  at  the 
time  of  the  assignment.  In  what  respect  doe^  such  a  case  differ 
from  a  case  where  it  has  not  passed  into  another  jurisdiction?  Is 
there  any  substantial  difference  between  its  being  on  board  a  Brit- 
ish vessel  and  its  being  on  board  of  an  American  vessel  on  the 
high  seas?"  No  claim  can  be  made  that  this  vessel  was  within 
the  jurisdiction  of  New  York  when  the  assignment  was  executed. 

If  the  title  passed  to  the  insolvent  assignees,  it  passed  eo  in- 
stant! the  assignment  was  executed.  It  took  effect  then  or  never. 
The  return  of  the  vessel  afterwards  to  America,  her  arrival  in  the 


410  PRIVATE   INTERNATIONAL  LAW. 

port  of  New  York,  her  seizure  and  sale  there  did  not  operate  to 
divest  a  title  already  complete. 

Again,  the  owners  of  this  vessel  and  the  assignees  in  insolv- 
ency were  citizens  of  Massachusetts,  and  subject  to  her  laws.  It 
is  not  doubted  that  a  sale  of  property  between  them  of  property 
on  board  of  this  vessel,  or  of  the  vessel  itself,  would  be  regulated 
by  the  laws  of  Massachusetts.  It  is  not  doubted  that  the  vessel 
was  taxable  in  Massachusetts  only,  or  that  if  Gibbs  or  Jenny  had 
been  on  board  of  the  vessel,  and  had  died  before  the  vessel  reached 
New  York,  his  personal  property  on  or  in  her  would  have  passed 
under  the  laws  of  Massachusetts. 

If  this  vessel  had  never  returned  to  the  American  shores  but 
had  gone  to  the  bottom  in  the  Pacific  seas,  after  the  assignment 
was  complete,  whose  vessel  would  she  have  been  at  the  time  of 
such  loss?  There  can  be  but  one  answer.  The  Massachusetts 
statute  declares  that  this  assignment  vested  in  Crapo  and  his  as- 
sociates all  the  title  and  interest  the  insolvent  had  in  this  vessel. 
In  other  words  it  vested  in  them  the  absolute  ownership.  There 
was  not  then,  or  for  weeks  afterwards,  any  possible  question  of 
their  title.  The  insurance-money  upon  the  ship  would  have  been 
their  property,  and  they  would  have  been  bound  to  collect  it  an^ 
distribute  it  among  the  creditors. 

Personal  property  which  has  an  established  situs  in  another 
State,  is  no  doubt  governed  by  the  lex  loci  sitae  rei,  so  far  that  it 
will  be  governed  in  its  distribution  by  the  laws  of  the  place  where 
found,  rather  than  the  law  of  the  domicile.  This  rule  only  ap- 
plies where  such  property  has  acquired  an  established  situs.  Until 
that  occurs  there  can  be  no  conflict  of  jurisdiction. 

It  is  said,  however,  that  the  fact  that  the  property  on  board 
a  vessel  at  sea  and  the  vessel  itself,  contracts  respecting  them  and 
the  distribution  of  the  assets  of  the  intestate,  are  regulated  by  the 
laws  of  Massachusetts,  arises  solely  from  the  circumstance  that 
the  owner  is  a  resident  of  that  State ;  that  jurisdiction  of  the  par- 
ties it  is,  that  gives  the  jurisdiction  of  these  subjects.  The  au- 
thorities from  Kent,  Story,  and  Wheaton,  and  the  continental  au- 
thorities, the  civil  law  before  cited,  as  well  as  the  decisions  in 
Plestoro  v.  Abrahams,  make  the  ship  itself,  under  such  circum- 


MOVABLES.  411 

stances,  a  part  of  the  territory  of  the  State  to  which  its  owner  be- 
longs. If  he  resides  in  Boston  his  property  in  the  remotest  county 
in  the  State  is  under  the  protection  of  its  laws,  as  being  upon  and 
within  its  territory.  So  his  property  on  his  ship,  for  the  purpose 
we  are  considering,  is  legally  and  constructively  within  its  terri- 
tory. In  each  case  it  is  true  that  the  existence  of  an  owner  is 
necessary  to  call  forth  the  exercise  of  the  law  and  the  duty  and 
power  of  the  State.  In  this  sense,  it  is  true,  that  the  residence  of 
the  owner  produces  the  result.  It  is  produced,  however,  not  only 
by  the  existence  and  residence  of  the  owner,  but  by  an  extended 
State  territory  upon  which  his  property  remains,  and  where  it  is 
subject  to  State  laws  and  entitled  to  the  protection  of  the  same 
laws. 

Grotius  holds  that  sovereignty  may  be  acquired  over  a  por- 
tion of  the  sea,  ratione  per  sonar  um.  Rutherford  and  others  hold 
this  to  be  an  error,  and  that  no  nation  has  jurisdiction  over  the 
ocean  itself.  All  agree  that  jurisdiction  over  the  public  and  pri- 
vate vessels  of  a  nation  at  sea,  remains  to  the  nation,  and  it  is  ex- 
pressed in  the  language  already  quoted. 

In  the  celebrated  Trent  Case,  occurring  in  1862,  Messrs.  Ma- 
son and  Slidell  were  removed  from  a  British  private  vessel  by 
Commodore  Wilkes  of  the  San  Jacinto,  a  public  vessel  of  the  Uni- 
ted States.  Great  Britain  insisted  that  the  rights  of  a  neutral 
vessel  not  only  had  been  violated,  for  which  she  demanded  apol- 
ogy, but  she  insisted  that  these  persons  should  be  replaced  and  re- 
turned ori  board  a  British  ship.  This  was  done,  and  they  were 
actually  placed  on  board  a  British  vessel  in  or  near  the  harbor  of 
Boston.  They  were  not  British  subjects,  and  their  return  could 
only  have  been  demanded  for  the  reason  that  they  had  been  torn 
from  British  soil,  and  the  sanctity  of  British  soil  as  represented 
by  a  British  ship  had  been  violated.  Citizenship  or  residence  had 
no  influence  upon  the  question. 

This  vessel,  the  Arctic,  was  upon  the  high  seas  at  the  time 
of  the  assignment.  The  status  at  that  time  decides  the  question 
of  jurisdiction.  The  State  of  New  York  had  no  jurisdiction  over 
her  until  long  afterwards.  No  conflict  can,  therefore,  arise  be- 
tween the  laws  of  New  York  and  of  Massachusetts.     The  United 


412  PRIVATE    INTERNATIONAL   LAW. 

States  had  no  jurisdiction  over  her  for  the  purpose  we  are  con- 
sidering. We  hold  that  she  was  subject  to  the  disposition  made 
by  the  laws  of  Massachusetts,  and  that  for  the  purpose  and  to  the 
extent  that  title  passed  to  the  assignees,  the  vessel  remained  a  por- 
tion of  the  territory  of  that  State. 

Judgment  reversed,  and  the  case  remanded  for  further 

PROCEEDINGS. 


BARNETT  v.  KINNEY,  147  U.  S.  476,  (1893). 

This  was  an  action  of  replevin  commenced  in  the  District 
Court  of  Alturas  County,  Territory  of  Idaho,  on  December  12, 
1887,  by  Josiah  Barnett  against  P.  H.  Kinney  to  recover  the  pos- 
session of  certain  goods  and  chattels  mentioned  in  the  complaint 
and  for  damages  and  costs.  The  case  was  submitted  to  the  court 
for  trial,  a  jury  having  been  expressly  waived,  upon  an  agreed 
statement  of  facts,  and  the  court  made  its  findings  of  fact  as  fol- 
lows :  That  on  November  23,  1887,  M.  H.  Lipman  was  a  citizen  of 
the  United  States  and  of  the  territory  of  Utah,  residing  and  doing 
business  at  Salt  Lake  City,  and  was  possessed  and  the  owner  of 
real  and  personal  property  in  Utah,  and  of  certain  personal  prop- 
erty at  Hailey,  in  Alturas  County,  Idaho;  and  that  he  was  in- 
debted to  divers  persons,  (none  of  whom  were  then,  or  at  the  time 
of  trial,  citizens,  residents  and  inhabitants  of  Idaho,)  and  was  in- 
solvent, and  on  that  day  duly  made,  executed  and  delivered  to 
Barnett,  as  his  assignee,  a  deed  of  assignment  in  writing,  which 
was  accepted  by  Barnett,  who  assumed  the  execution  thereof; 
that  by  the  assignment,  Lipman  sold,  transferred,  assigned  and  de- 
livered to  Barnett  all  his  property,  real  and  personal,  wherever 
found,  in  trust,  to  take  possession  and  convert  the  same  into  cash, 
and  pay  the  necessary  expenses,  and  then  his  creditors,  according 
to  certain  classes  named  in  the  assignment,  preferences  being  made 
thereby  in  favor  of  certain  creditors,  as  against  others,  all  being 
designated  by  classes;  that  on  November  25,  1887,  Barnett,  as  as- 
signee, took  actual  possession  of  the  personal  property  situated  in 
Idaho,  and  on  November  26,  and  before  the  property  was  taken 
by  Kinney,  filed  the  assignment  for  record  in  the  proper  office  in 


MOVABLES.  413 

Alturas  County ;  and  that  Kinney  had  actual  knowledge  and  no- 
tice in  the  premises.  It  was  further  found  that  the  assignment 
"was  and  is  valid  by  the  laws  of  the  Territory  of  Utah ;"  that  Lip- 
man  was  indebted  to  the  St.  Paul  Knitting  Works,  a  corporation 
organized  and  existing  under  the  laws  of  the  State  of  Minnesota, 
the  liability  having  been  incurred  by  him  as  a  citizen,  resident  and 
inhabitant  of  Utah,  and  in  the  transaction  of  his  business  there; 
that  on  November  26,  1887,  and  while  Barnett  was  in  actual  pos- 
session, Kinney,  who  was  sheriff  of  Alturas  County,  under  a  writ 
of  attachment  in  favor  of  that  corporation  and  against  Lipman, 
took  possession  of  the  property ;  and  that  thereupon  this  action  of 
replevin  was  commenced  and  the  possession  of  the  property  de- 
livered to  Barnett,  who  had  sold  the  same  and  retained  the  pro- 
ceeds subject  to  the  final  disposition  of  the  action.  It  was  fur- 
ther found  that  prior  to  the  taking  of  the  property  from  Barnett 
by  Kinney  under  the  writ  of  attachment  and  after  the  assignment 
had  been  recorded,  Kinney,  as  sheriff,  had  taken  it  from  Barnett's 
possession  under  a  writ  of  attachment  issued  at  the  suit  of  a  firm 
located  in  Nebraska  against  Lipman,  and  it  had  been  retaken  from 
Kinney  in  an  action  of  claim  and  delivery  brought  by  Barnett 
against  him,  which  action  was  still  pending.  It  was  also  found 
that  the  goods  had  been  shipped  from  Lipman's  store  in  Utah  in 
September,  1887,  to  Alturas  County,  and  that  Lipman  from  Sep- 
tember, 1887,  up  to  the  time  of  making  the  assignment,  had  been 
doing  business  in  Idaho  in  the  running  of  a  branch  store  at  Hailey, 
in  Alturas  County;  and  that  at  the  time  of  bringing  this  action 
defendant  was  wrongfully  detaining  the  property  from  the  pos- 
session of  plaintiff. 

The  court  found  as  conclusions  of  law  that  the  assignment,  a 
copy  of  which  was  annexed  to  the  finding  of  facts,  was  a  good 
and  valid  instrument,  and  conveyed  title  to  the  property  in  ques- 
tion ;  and  that  the  plaintiff  at  the  time  of  bringing  the  action  -md 
the  trial  was  entitled  to  the  possession  of  the  property,  and  to 
judgment  therefor,  and  for  nominal  damages  and  costs.  Judg- 
ment having  been  entered,  an  appeal  was  prosecuted  to  the  Su- 
preme Court  of  the  Territory,  by  which  it  was  reversed,  and  the 
cause    remanded    to    the    District    Court    with    instructions    to 


414  PRIVATE    INTERNATIONAL   LAW. 

enter  judgment  for  the  defendant.  The  record  shows  that  the 
case  had  been  tried  in  the  District  Court  before  the  then  Chief 
Justice  of  the  Territory,  and  that  a  change  had  taken  place  in  that 
office  when  the  hearing  was  had  on  appeal.  Of  the  three  mem- 
bers composing  the  Supreme  Court,  one  was  for  reversal  and  an- 
other for  affirmance,  while  the  Chief  Justice  had  been  of  counsel 
between  the  same  parties  in  a  case  in  the  same  District  Court,  but 
"with  a  different  attaching  creditor,*'  and  he  stated  that  he  had 
not  participated  in  the  discussion  of  the  case,  but,  his  associates 
having  reached  opposite  conclusions,  the  disagreeable  duty  rested 
u*pon  him  "of  breaking  the  dead-lock,"  which  he  did  by  concur- 
ring in  the  opinion  for  reversal.  The  majority  opinion  is  to  be 
found  in  23  Pac.  Rep.  922,  and  the  dissent  in  24  Pac.  Rep.  624. 
The  case  was  brought  by  appeal  to  this  court. 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered 
the  opinion  of  the  court. 

The  Supreme  Court  of  the  Territory  held  that  a  non-resident 
could  not  make  an  assignment,  with  preferences,  of  personal  prop- 
erty situated  in  Idaho,  that  would  be  valid  as  against  a  non-resi- 
dent attaching  creditor,  the  latter  being  entitled  to  the  same  rights 
as  a  citizen  of  Idaho ;  that  the  recognition  by  one  State  of  the  laws 
of  another  State  governing  the  transfer  of  property  rested  on  the 
principle  of  comity,  which  always  yielded  when  the  policy  of  the 
State  where  the  property  was  located  had  prescribed  a  different 
rule  of  transfer  from  that  of  the  domicil  of  the  owner ;  that  this 
assignment  was  contrary  to  the  statutes  and  the  settled  policy  of 
Idaho,  in  that  it  provided  for  preferences;  that  the  fact  that  the 
assignee  had  taken  and  was  in  possession  of  the  property  could 
not  affect  the  result ;  and  that  the  distinction  between  a  voluntary 
and  an  involuntary  assignment  was  entitled  to  no  consideration. 

Undoubtedly  there  is  some  conflict  of  authority  on  the  ques- 
tion as  to  how  far  the  transfer  of  personal  property  by  assign- 
ment or  sale,  lawfully  made  in  the  country  of  the  domicil  of  the 
owner,  will  be  held  to  be  valid  in  the  courts  of  another  country, 
where  the  property  is  situated  and  a  different  local  rule  prevails. 

We  had  occasion  to  consider  this  subject  somewhat  in  Cole  v. 
Cunningham,  133  U.  S.  107,  129,  and  it  was  there  said:  "Great 


MOVABLES.  415 

contrariety  of  state  decision  exists  upon  this  general  topic,  and 
it  may  be  fairly  stated  that,  as  between  citizens  of  the  state  of 
tne  forum,  and  the  assignee  appointed  under  the  laws  of  another 
state,  the  claim  of  the  former  will  be  held  superior  to  that  of  the 
latter  by  the  courts  of  the  former ;  while,  as  between  the  assignee 
and  citizens  of  his  own  state  and  the  state  of  the  debtor,  the  laws 
of  such  state  will  ordinarily  be  applied  in  the  state  of  the  litiga- 
tion, unless  forbidden  by,  or  inconsistent  with,  the  laws  or  policy 
of  the  latter.  Again,  although,  in  some  of  the  states,  the  fact 
that  the  assignee  claims  under  a  decree  of  a  court  or  by  virtue  of 
the  law  of  the  state  of  the  domicil  of  the  debtor  and  the  attach- 
ing creditor,  and  not  under  a  conveyance  by  the  insolvent,  is  re- 
garded as  immaterial,  yet,  in  most,  the  distinction  between  invol- 
untary transfers  of  property,  such  as  work  by  operation  of  law, 
as  foreign  bankrupt  and  insolvent  laws,  and  a  voluntary  convey- 
ance, is  recognized.  The  reason  for  the  distinction  is  that  a  vol- 
untary transfer,  if  valid  where  made,  ought  generally  to  be  valid 
everywhere,  being  the  exercise  of  the  personal  right  of  the  owner 
to  dispose  of  his  own,  while  an  assignment  by  operation  of  law 
has  no  legal  operation  out  of  the  state  in  which  the  law  was 
passed.  This  is  a  reason  which  applies  to  citizens  of  the  actual 
situs  of  the  property  when  that  is  elsewhere  than  at  the  domicil 
of  the  insolvent,  and  the  controversy  has  chiefly  been  as  to  wheth- 
er property  so  situated  can  pass  even  by  a  voluntary  conveyance." 

We  have  here  a  voluntary  transfer  of  his  property  by  a  citi- 
zen of  Utah  for  the  payment  of  his  debts,  with  preferences,  which 
transfer  was  valid  in  Utah,  where  made,  and  was  consummated 
by  the  delivery  of  the  property  in  Idaho,  where  it  was  situated, 
and  then  taken  on  an  attachment  in  favor  of  a  creditor  not  a  resi- 
dent or  citizen  of  Idaho.  Was  there  anything  in  the  statutes  or 
established  policy  of  Idaho  invalidating  such  transfer? 

Title  XII  of  Part  Second  of  the  Revised  Statutes  of  the  Ter- 
ritory of  Idaho,  entitled  "Of  proceedings  in  insolvency,"  (Rev. 
Stats.  Idaho,  §§  5875  to  5932,)  provided  that  "no  assignment  of 
any  insolvent  debtor,  otherwise  than  as  provided  in  this  title,  is 
legal  or  binding  on  creditors ;"  that  creditors  should  share  pro 
rata,  "without  priority  or  preference  whatever ;"  for  the  discharge 


416  PRIVATE   INTERNATIONAL   LAW. 

of  the  insolvent  debtor  upon  compliance  with  the  provisions  of 
the  title,  by  application  for  such  discharge  by  petition  to  the  Dis- 
trict Court  of  the  county  in  which  he  had  resided  for  six  months 
next  preceding,  with  schedule  and  inventory  annexed,  giving  a 
true  statement  of  debts  and  liabilities  and  a  description  of  all  the 
insolvent's  estate,  including  his  homestead,  if  any,  and  all  prop- 
erty exempt  by  law  from  execution.  The  act  applied  to  corpora- 
tions and  partnerships,  and  declared  that  if  the  partners  resided 
in  different  counties,  that  court  in  which  the  petition  was  first 
filed  should  retain  jurisdiction  over  the  case.  Nothing  is  clearer 
from  its  various  provisions  than  that  the  statute  had  reference 
only  to  domestic  insolvents.  As  pointed  out  by  Judge  Berry  in 
his  dissenting  opinion,  the  first  section  of  the  fifty-eight  upon  this 
subject,  in  providing  that  "every  insolvent  debtor  may,  upon  com- 
pliance with  the  provisions  of  this  title,  be  discharged  from  his 
debts  and  liabilities,"  demonstrates  this.  The  legislature  of  Idaho 
certainly  did  not  attempt  to  discharge  citizens  of  other  jurisdic- 
tions from  their  liabilities,  nor  intend  that  personal  property  in 
Idaho,  belonging  to  citizens  of  other  States  or  Territories,  could 
not  be  applied  to  the  payment  of  their  debts  unless  they  acquired 
a  six  months'  residence  in  some  county  of  Idaho,  and  went 
through  its  insolvency  court. 

The  instrument  in  controversy  did  not  purport  to  be  exe- 
cuted under  any  statute,  but  was  an  ordinary  common  law  as- 
signment with  preferences,  and  as  such  was  not,  in  itself  illegal. 
Jewell  v.  Knight,  123  U.  S.  426,  434.  And  it  was  found  as  a 
fact  that  it  was  valid  under  the  laws  of  Utah.  While  the  statute 
of  Idaho  prescribed  pro  rata  distribution  without  preference,  in 
assignments  under  the  statute,  it  did  not  otherwise  deal  with  the 
disposition  of  his  property  by  a  debtor  nor  prohibit  preferences 
between  non-resident  debtors  and  creditors  through  an  assign- 
ment valid  by  the  laws  of  the  debtor's  domicil.  No  just  rule  re- 
quired the  courts  of  Idaho,  at  the  instance  of  a  citizen  of  another 
state,  to  adjudge  a  transfer,  valid  at  common  law  and  by  the  law 
of  the  place  where  it  was  made,  to  be  invalid,  because  preferring 
creditors  elsewhere,  and,  therefore,  in  contravention  of  the  Idaho 
statute  and  the  public  policy  therein  indicated  in  respect  of  its  own 


MOVABLES.  417 

citizens,  proceeding  thereunder.  The  law  of  the  situs  was  not 
incompatible  with  the  law  of  the  domicil. 

In  Halstead  v.  Straus,  32  Fed.  Rep.  279,  280,  which  was  an 
action  in  New  Jersey  involving  an  attachment  there  by  a  New 
York  creditor  as  against  the  voluntary  assignee  of  a  New  York 
firm,  the  property  in  dispute  being  an  indebtedness  of  one  Straus, 
a  resident  of  New  Jersey,  to  the  firm,  Mr.  Justice  Bradley  re- 
marked :  "It  is  true  that  the  statute  of  New  Jersey  declares  that 
assignments  in  trust  for  the  benefit  of  creditors  shall  be  for  their 
equal  benefit,  in  proportion  to  their  several  demands,  and  that  all 
preferences  shall  be  deemed  fraudulent  and  void.  But  this  law 
applies  only  to  New  Jersey  assignments,  and  not  to  those  made  in 
other  States,  which  affect  property  or  creditors  in  New  Jersey. 
It  has  been  distinctly  held  by  the  courts  of  New  Jersey  that  a 
voluntary  assignment  made  by  a  non-resident  debtor,  which  is 
valid  by  the  law  of  the  place  where  made,  cannot  be  impeached  in 
New  Jersey,  with  regard  to  property  situated  there,  by  non-resi- 
dent debtors.  Bentley  v.  Whittemore,  4  C.  E.  Green,  (19  N.  J. 
Eq.)  462;  Moore  v.  Bonnell,  2  Vroom  (31  N.  J.  Law,)  90.  The 
execution  of  foreign  assignments  in  New  Jersey  will  be  enforced 
by  its  courts  as  a  matter  of  comity,  except  when  it  would  injure 
its  own  citizens ;  then  it  will  not.  If  Deering,  Milliken  &  Co. 
were  a  New  Jersey  firm  they  could  successfully  resist  the  exe- 
cution of  the  assignment  in  this  case.  But  they  are  not ;  they  are 
a  New  York  firm.  New  York  is  their  business  residence  and 
domicil.  The  mere  fact  that  one  of  the  partners  resides  in  New 
Jersey  cannot  alter  the  case.  The  New  Jersey  courts,  in  carry- 
ing out  the  policy  of  its  statute  for  the  protection  of  its  citizens, 
by  refusing  to  carry  into  effect  a  valid  foreign  assignment,  will 
be  governed  by  reasonable  rules  of  general  jurisprudence ;  and  it 
seems  to  me  that  to  refuse  validity  to  the  assignment  in  the  pres- 
ent case,  would  be  unreasonable  and  uncalled  for." 

In  May  v.  First  National  Bank,  122  Illinois,  551,  556,  the 
Supreme  Court  of  Illinois  held  that  the  provision  in  the  statute  of 
that  State  prohibiting  all  preferences  in  assignments  by  debtors 
applied  only  to  those  made  in  the  State,  and  not  to  those  made  in 
other  States ;  that  the    statute  concerned   only  domestic    assign- 


418  PRIVATE    INTERNATIONAL   LAW. 

merits  and  domestic  creditors;  and  the  court,  in  reference  to  the 
contention  that,  if  not  against  the  terms,  the  assignment  was 
against  the  policy  of  the  statute,  said :  "An  assignment  giving 
preferences,  though  made  without  the  State,  might,  as  against 
creditors  residing  in  this  State,  with  some  reason,  be  claimed  to  be 
invalid,  as  being  against  the  policy  of  the  statute  in  respect  of  do- 
mestic creditors — that  it  was  the  policy  of  the  law  that  there 
should  be  an  equal  distribution  in  respect  to  them.  But  as  the 
statute  has  no  application  to  assignments  made  without  the  State, 
we  cannot  see  that  there  is  any  policy  of  the  law  which  can  be 
said  to  exist  with  respect  to  such  assignments,  or  with  respect  to 
foreign  creditors,  and  why  non-residents  are  not  left  free  to  exe- 
cute voluntary  assignments,  with  or  without  preferences,  among 
foreign  creditors,  as  they  may  see  fit,  so  long  as  domestic  creditors 
are  not  affected  thereby,  without  objection  lying  to  such  assign- 
ments that  they  are  against  the  policy  of  our  law.  The  statute 
was  not  made  for  the  regulation  of  foreign  assignments,  or  for 
the  distribution,  under  such  assignments,  of  a  debtor's  property 
among  foreign  creditors." 

In  Frank  v.  Bobbitt,  155  Mass.  112,  a  voluntary  assignment 
made  in  North  Carolina  and  valid  there,  was  held  valid  and  en- 
forced in  Massachusetts  as  against  a  subsequent  attaching  creditor 
of  the  assignors,  resident  in  still  another  State,  and  not  a  party  to 
the  assignment.  The  Supreme  Judicial  Court  observed  that  the 
assignment  was  a  voluntary  and  not  a  statutory  one ;  that  the  at- 
taching creditors  were  not  resident  in  Massachusetts ;  that  at 
common  law  in  that  State  an  assignment  for  the  benefit  of  credi- 
tors which  created  preferences  was  not  void  for  that  reason ;  and 
that  there  was  no  statute  which  rendered  invalid  such  an  assign- 
ment when  made  by  parties  living  in  another  State,  and  affecting 
property  in  Massachusetts,  citing  Train  v.  Kendall,  137  Mass. 
366.  Referring  to  the  general  rule  that  a  contract,  valid  by  the 
law  of  the  place  where  made,  would  be  regarded  as  valid  else- 
where, and  stating  that  "it  is  not  necessary  to  inquire  whether 
this  rule  rests  on  the  comity  which  prevails  between  different 
states  and  countries,  or  is  a  recognition  of  the  general  right  which 
every  one  has  to  dispose  of  his  property  or  to  contract  concern- 


MOVABLES.  419 

ing  it  as  he  chooses,"  the  court  said  that  the  only  qualification  an- 
nexed to  voluntary  assignments  made  by  debtors  living  in  an- 
other State  had  been  "that  this  court  would  not  sustain  them  if 
to  do  so  would  be  prejudicial  to  the  interests  of  our  own  citizens 
or  opposed  to  public  policy."  And  added:  "As  to  the  claim  of 
the  plaintiffs  that  they  should  stand  as  well  as  if  they  were  citi- 
zens of  this  State,  it  may  be  said,  in  the  first  place,  that  the  qualifi- 
cation attached  to  foreign  assignments  is  in  favor  of  our  own  citi- 
zens as  such,  and  in  the  next  place,  that  the  assignment  being 
valid  by  the  law  of  the  place  where  it  was  made,  and  not  adverse 
to  the  interests  of  our  citizens  nor  opposed  to  public  policy,  no 
cause  appears  for  pronouncing  it  invalid."  And  see,  among  nu- 
merous cases  to  the  same  effect,  Butler  v.  Wendell,  57  Michigan, 
62;  Receiver  v.  First  National  Bank,  7  Stewart,  (34  N.  J.  Eq. 
450)  ;  Egbert  v.  Baker,  58  Connecticut,  319;  Chafee  v.  Fourth 
National  Bank  of  New  York,  71  Maine,  514;  Ockerman  v.  Cross, 
54  N.  Y.  29;  W eider  v.  Maddox,  66  Texas,  372;  Thurston  v. 
RosenHeld,  42  Missouri,  474. 

We  do  not  regard  our  decision  in  Green  v.  Van  Buskirk,  5 
Wall.  307;  7  Wall.  139,  as  to  the  contrary.  That  case  was  fully 
considered  in  Cole  v.  Cunningham,  supra,  and  need  not  be  reex- 
amined. The  controversy  was  between  two  creditors  of  the 
owner  of  personalty  in  Illinois,  one  of  them  having  obtained  judg- 
ment in  a  suit  in  which  the  property  was  attached  and  the  other 
claiming  under  a  chattel  mortgage.  By  the  Illinois  statute  such 
a  mortgage  was  void  as  against  third  persons,  unless  acknowl- 
edged and  recorded  as  provided,  or  unless  the  property  was  de- 
livered to  and  remained  with  the  mortgagee,  and  the  mortgage 
in  that  case  was  not  acknowledged  and  recorded,  nor  had  posses- 
sion been  taken.  All  parties  were  citizens  of  New  York,  but  that 
fact  was  not  considered  sufficient  to  overcome  the  distinctively 
politic  and  coercive  law  of  Illinois. 

In  our  judgment,  the  Idaho  statute  was  inapplicable  and  the 
assignment  was  in  contravention  of  no  settled  policy  of  that  Ter- 
ritory. It  was  valid  at  common  law,  and  valid  in  Utah,  and  the 
assignee  having  taken  possession  before  the  attachment  issued, 


420  PRIVATE   INTERNATIONAL   LAW. 

the  District  Court  was  right  in  the  conclusions  of  law  at  which  it 
arrived. 

The  judgment  is  reversed  and  the  cause  remanded  to  the  Su- 
preme Court  of  the  State  of  Idaho  for  further  proceedings  not 

inconsistent  with  this  opinion. 

Judgment  reversed. 

ATTACHMENT  AND  SITUS  OP  A  DEBT. 

NATIONAL  FIRE  INS.  CO.  v.  CHAMBERS,  53  N.  J.  EQ.  468  (1895). 

On  interpleader. 

The  contest  in  this  case  is  between  the  defendants  Harding. 
Whitman  &  Company  on  the  one  side  and  Mr.  J.  J.  Crandall  on 
the  other.  Both  parties  claim  under  the  defendant,  Frank  Cham- 
bers, an  admitted  creditor  of  the  complainant. 

Harding,  Whitman  &  Company  claim  under  an  attachment 
issued  out  of  the  court  of  common  pleas  No.  4,  of  the  city  of 
Philadelphia,  against  Chambers,  and  Mr.  Crandall  claims  under 
an  assignment  from  him  subsequent  in  date  to  the  attachment  of 
Harding,  Whitman  &  Company.  The  question  is  whether  Hard- 
ing, Whitman  &  Company's  attachment  gave  them  a  lien  upon 
the  debt  due  from  complainant  to  Chambers ;  or,  as  otherwise  ex- 
pressed, effected  an  involuntary  assignment  of  it  from  Chambers 
to  them. 

The  facts  which  clearly  appear  are  as  follows : 

Chambers  was  and  is  a  resident  of  New  Jersey,  engaged  in 
manufacturing,  with  a  plant  at  Camden,  which  was  insured 
against  loss  by  fire  by  the  complainant  and  other  insurance  com- 
panies. A  fire  occurred  in  it  on  the  20th  of  June,  1893.  On  or 
shortly  before  the  29th  of  June  the  representatives  of  the  different 
underwriters  met  and  adjusted  the  amount  of  the  loss,  and  also 
apportioned  it  as  between  themselves,  with  the  result  that  the 
amount  allotted  to  the  complainant  was  $591.68.  On  June  29th 
the  defendants,  William  P.  Datz  and  Alois  D.  Datz,  trading  as 
W.  P.  Datz  &  Brother,  sued  out  of  the  court  of  common  pleas 
No.  2,  of  the  county  of  Philadelphia,  State  of  Pennsylvania,  a 
writ  of  foreign  attachment  against  Chambers,  returnable  on  the 
third    Monday    of    September,    1893,    founded    on    a    claim    of 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  421 

$285.91  against  Chambers.  The  instructions  endorsed  on  that 
writ  commanded  the  sheriff  to  attach  "all  and  singular  the  goods 
and  chattels,  lands  and  tenements,  rights  and  credits  of  the  de- 
fendant, Frank  Chambers,  in  whose  hands  soever  they  may  be, 
and  summon  them  as  garnishees,  and  especially  all  sums  due  by 
the  National  Fire  Insurance  Company  of  Hartford,  Connecticut, 
and  Rochester  German  Insurance  Company,  to  said  defendant, 
and  summon  them  as  garnishees." 

By  virtue  of  that  writ  the  sheriff  of  th^  county  of  Philadel- 
phia, by  his  deputy,  at  a  quarter  after  three  o'clock,  June  29th, 
made  the  usual  declaration  in  attachment  in  the  presence  of  Wil- 
liam F.  Bradway,  named  in  the  writ  as  the  agent  of  the  complain- 
ant in  Pennsylvania,  designated  as  such  by  the  complainant,  at 
his  office  in  the  city  of  Philadelphia. 

The  Complainant  duly  appeared  to  this  suit,  and  then,  ac- 
cording to  the  practice  in  the  Pennsylvania  courts,  the  plaintiffs, 
Datz  &  Brother,  served  interrogatories  upon  it,  wherein,  among 
other  questions,  they  asked  whether  at  th^  time  the  writ  was 
served  upon  complainant's  agent  there  was  anything  due  from  it 
to  Frank  Chambers,  on  a  policy  of  insurance.  To  that  interroga- 
tory the  complainant  answered  that  the  sum  of  $591.68  was  due 
from  it  to  said  Frank  Chambers,  which  it  was  willing  and  ready 
to  pay  to  the  person  entitled  to  receive  the  same. 

On  the  3d  of  August,  1893,  the  defendants  Harding,  Whit- 
man &  Company,  sued  out  of  the  court  of  common  pleas  No.  4, 
of  the  city  of  Philadelphia,  a  like  writ  of  attachment  against 
Frank  Chambers,  returnable  on  the  third  Monday  of  September, 
1893,  which  the  sheriff  served  in  precisely  the  same  manner  as  he 
had  served  the  previous  one  of  Datz  &  Brother.  To  that  writ  the 
complainant  herein  duly  entered  an  appearance. 

In  each  of  the  attachment  suits  the  respective  plaintiffs  filed 
statements  of  their  claims,  with  an  affidavit  of  one  of  the  firm  that 
the  amount  claimed  was  due,  and  in  each  judgment  was  entered 
against  the  defendant  Chambers — in  the  case  of  Datz  &  Brother 
for  the  sum  of  $229.92,  March  26th,  1894,  and  in  the  case  of 
Harding,  Whitman  &  Company  for  $5,549.93.  April  6th,  1894. 

On  the  30th  of  January,  1894,  seven  months  after  the  adjust- 


422  PRIVATE  INTERNATIONAL   LAW. 

ment  of  the  loss,  the  defendant  Chambers  commenced  an  action 
in  contract  against  the  complainant,  in  the  Camden  county  circuit 
court,  founded  on  the  amount  found  to  be  due.  as  above  stated, 
upon  the  policy  of  insurance  issued  by  complainant  to  him,  under 
which  the  loss  occurred,  and  served  process  upon  complainant 
through  its  agent  in  this  state.  Whereupon  on  the  19th  of 
February,  1894,  the  complainant  filed  its  bill  of  interpleader 
against  Datz  &  Brother,  Harding,  Whitman  &  Company,  and 
Chambers,  and  paid  into  court  the  sum  of  $591.68,  and  obtained 
from  this  court  an  injunction  against  further  prosecution  of  the 
garnishment  proceedings  by  Datz  &  Brother  and  Harding,  Whit- 
man &  Company  against  it  in  the  courts  of  Philadelphia,  and  the 
action  at  law  by  Chambers  in  the  Camden  circuit.  Motion  was 
made  to  dismiss  this  bill  before  Vice-Chancellor  Green,  and  was 
refused  by  him  on  the  20th  of  March,  1894.  The  usual  order  dis- 
charging the  complainant,  and  that  the  defendants  interplead,  was 
made  on  the  23d  of  July,  1894. 

Datz  &  Brother  did  not  submit  to  the  jurisdiction  of  this 
court,  and  on  the  3d  of  April,  1894,  a  rule  to  show  cause  was 
granted  in  their  suit  in  common  pleas  No.  2  why  judgment 
should  not  be  entered  against  the  insurance  company,  complain- 
ant herein,  as  garnishee.  That  rule  was  resisted,  and  the  com- 
plainant was  permitted  to  file  supplemental  answers  to  the  inter- 
rogatories which  had  been  previously  administered  to  it,  accord- 
ing to  the  practice  in  the  Pennsylvania  courts,  and  in  those,  by  way 
of  plea  puis  darrein  continuance,  it  set  up  the  suit  brought  by 
Chambers  against  it  in  the  Camden  circuit,  and  that,  being  ad- 
vised that  it  would  not  be  able  to  set  up  as  a  defence  at  law  to  that 
action  the  attachment  proceedings  in  Pennsylvania,  it  had  filed  its 
bill  of  interpleader  in  this  court,  and  had  obtained  an  injunction 
against  Chambers  and  Datz  &  Brother.  It  further  set  up  as  an 
affirmative  defence  to  the  proceedings  in  garnishment  that  the 
amount  due  to  Chambers  under  its  policy  was  not  due  or  payable 
in  the  State  of  Pennsylvania,  but  at  the  main  office  of  the  com- 
pany, in  the  city  of  Hartford,  Connecticut ;  that  the  policy  of  in- 
surance was  not  issued  in  the  State  of  Pennsylvania,  nor  had  the 
amount  due  thereunder,  either  at  the  time  of  the  writ  of  attach- 


ATTACHMENT   AND   SITUS   OP   A   DEBT.  423 

ment  or  prior  or  subsequent  thereto,  been  in  the  possession  of  the 
agent  of  the  company  in  the  State  of  Pennsylvania,  or  in  the  hands 
of  any  other  person  in  the  State  of  Pennsylvania. 

The  court  of  common  pleas  No.  2,  after  argument,  in  a  con- 
sidered judgment  reviewing  the  authorities,  overruled  this  de- 
fence, holding  that  this  court  had  no  power  to  enjoin  Datz  & 
Brother,  and  that  the  complainant  was  subject  to  garnishment  in 
Pennsylvania  through  its  duly  authorized  agent,  and  entered 
judgment  against  complainant  for  $299.92,  the  amount  previously 
recovered  against  Chambers,  with  $16.12  costs.  This  judgment 
has  been  paid  by  the  complainant. 

Harding,  Whitman  &  Company  did  not  follow  up  their  judg- 
ment in  attachment  against  Chambers  by  garnishee  proceedings 
against  the  complainant  herein,  but  obeyed  the  injunction  of  this 
court. 

Mr.  John  J.  Crandall  presented  his  petition  to  this  court  on 
the  20th  of  April,  1894,  setting  up  that  on  the  19th  of  January,  a 
few  days  before  the  commencement  of  the  suit  by  Chambers 
against  complainant  in  the  Camden  circuit  court,  he  (Chambers) 
assigned  to  him  (Crandall)  all  the  moneys  to  be  recovered  on  the 
policy,  and  authorized  him  to  proceed  to  recover  the  money  by 
suit  in  Chambers'  name.  On  the  basis  of  that  petition,  an  order 
was  made  admitting  Mr.  Crandall  as  a  defendant  herein,  and  on 
the  19th  of  May,  1894,  he  filed  his  answer,  setting  up  that  he  was 
entitled  to  the  moneys  to  be  recovered  in  the  suit  in  the  Camden 
circuit,  by  virtue  of  the  assignment  to  him  of  the  19th  of  January, 
1894,  and  asserting  that  Harding,  Whitman  &  Company  obtained 
no  rights,  either  at  law  or  in  equity,  by  virtue  of  their  attachment 
proceedings  in  the  State  of  Pennsylvania.  Incorporated  in  this 
answer  of  Mr.  Crandall  was  a  cross-bill  praying  that  the  money 
might  be  paid  to  him. 

The  defendants  Harding,  Whitman  &  Company  answered  on 
the  19th  of  July,  1894,  setting  up  their  claim  against  Chambers 
and  the  attachment  in  the  State  of  Pennsylvania;  also,  a  judg- 
ment recovered  in  this  state  against  Chambers,  on  the  same  claim 
and  for  the  same  amount. 


424  PRIVATE   INTERNATIONAL,   LAW. 

Mr.  Thomas  B.  Harned,  for  Harding,  Whitman  &  Company. 

Mr.  John  J.  Crandall,  for  himself. 

Pitney,  V.  C. 

The  only  question  here  involved  is  this,  Did  Harding,  Whit- 
man &  Company,  by  their  proceeding  in  attachment  in  the  Phila- 
delphia common  pleas,  obtain  a  lien  upon  the  debt  due  from  the 
complainant  to  Chambers,  now  represented  by  the  fund  in  court 
in  this  cause  ?  or,  as  it  may  be  otherwise  expressed,  Did  the  pro- 
ceeding effect  an  involuntary  assignment  of  the  debt  from  Cham- 
bers to  Harding,  Whitman  &  Company?  If  such  was  the  result 
of  their  proceeding,  it  seems  to  me  to  follow  conclusively  that  they 
must  prevail  in  the  present  contest  upon  the  familiar  principle 
that  he  who  is  first  in  time  is  best  in  right.  ? 

A  faint  attempt  was  made  to  show,  bv  proofs,  that  Mr.  Cran- 
dall's  interest  in  the  claim  antedated  the  attachment  of  Harding, 
Whitman  &  Company.  I  think  this  attempt  failed.  He  put  him- 
self, both  in  his  petition  and  in  his  answer,  wholly  upon  his  assign- 
ment of  January,  1894,  and  at  the  argument  he  relied  wholly  upon 
the  ground,  as  I  interpret  his  argument,  that  the  Pennsylvania 
court  had  no  jurisdiction,  no  power  to  seize  this  debt,  and  that 
the  proceedings  for  that  purpose  should  not  be  recognized  as  valid 
by  this  court. 

The  proceedings  in  the  Datz  Case  show  clearly  enough  that 
the  Pennsylvania  courts,  if  properly  sued  by  Harding,  Whitman 
&  Company,  will  proceed  to  render  judgment  against  the  com- 
plainant, as  garnishee  of  Chambers,  in  favor  of  Harding,  Whit- 
man &  Company.  The  only  difference  between  the  case  of  Hard- 
ing, Whitman  &  Company  and  the  Datz  Case  is  that  Harding, 
WThitman  &  Company  are  non-residents  of  Pennsylvania.  But 
the  Pennsylvania  statute,  with  regard  to  foreign  attachments, 
makes  no  distinction  between  domestic  and  foreign  creditors  in 
this  behalf,  and  I  can  find  no  trace  of  any  such  distinction  having 
been  taken  in  any  of  the  decided  cases.  Franklin  Fire  Insurance 
Co.  v.  West,  8  Watts  &  S.  350;  Girard  Fire  Insurance  Co.  v. 
Field,  45  Pa.  St.  129;  Appeal  of  J  affray  &  Co.,  101  Pa.  St.  583; 
Chase  v.  Ninth  National  Bank  of  New  York,  56  Pa  St.  355. 
Oral  proof  was  given  in  this  case,  by  a  member  of  the  Philadel- 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  425 

phia  bar,  that  there  was  no  such  distinction ;  that  non-resident 
creditors  had  the  same  rights  to  sue  out  writs  of  attachment 
against  non-resident  debtors  as  have  resident  creditors  of  tha': 
state.  And  such  is  the  rule  in  our  own  and  in  most,  if  not  all,  the 
other  states  of  the  union.  I  am,  therefore,  forced  to  the  conclu- 
sion that  if  Harding,  Whitman  &  Company  had  not  submitted 
themselves  to  the  jurisdiction  of  this  court,  but  had  proceeded  in 
their  attachment  suit  with  the  ordinary  oroccedings  against  com- 
plainant as  garnishee,  they  would  have  recovered  judgment 
against  complainant  which  would  have  bound  it  in  all  jurisdic- 
tions. 

It  follows  that  it  is  thoroughly  established  that,  according  to 
the  system  of  jurisprudence  administered  by  the  courts  of  Penn- 
sylvania, Harding,  Whitman  &  Company  did  acquire  a  lien  upon 
this  debt  due  from  complainant  to  Chambers  by  their  proceedings 
in  the  Pennsylvania  courts. 

Is  there  anything  in  that  system,  as  manifested  in  this  case, 
which  is  contrary  to  international  law,  or  to  the  fundamental  prin- 
ciples of  natural  justice  recognized  by  all  civilized  nations? 

First:  Does  it  result  in  rendering  judgment  against  a  party 
without  having  acquired  jurisdiction  of  his  person  by  notice 
served  upon  him  within  the  territorial  juiisdiction?  The  lan- 
guage of  the  Pennsylvania  act  is  "that  any  legal  process  affecting 
the  insurance  company,  served  on  the  agent  specified  by  the  com- 
pany to  receive  service  of  process  for  said  company,  shall  have  the 
same  effect  as  if  served  personally  on  the  company  within  this 
state." 

Clearly,  the  meaning  of  the  language  "served  personally  on 
the  company  within  this  state,"  is  served  personally  on  a  company 
domiciled  within  this  state.  Such  has  be^n  the  construction  put 
upon  it  by  the  courts  of  Pennsylvania.  And  that  the  term  "proc- 
ess shall  be  construed  to  mean  and  include  any  and  every  writ, 
rule,  order,  notice  or  decree,  including  any  process  of  execution 
that  may  issue  in  or  upon  any  action,  suit  or  legal  proceedings  to 
which  said  company  may  be  a  party  by  themselves  or  jointly  with 
others,  whether  the  same  shall  arise  upon  a  policv  of  insurance  or 
otherwise,     *     *     *     and  every  such  service  shall  have  the  same 


426  PRIVATE   INTERNATIONAL  LAW. 

force  and  effect,  to  all  intents  and  purposes,  as  personal  service 
on  the  company  in  the  county  where  said  process  shall  issue." 

It  is  difficult  to  conceive  language  more  comprehensive  than 
this.  It  clearly  includes  process  of  garnishment.  And  the  con- 
sent filed  with  the  insurance  commissioner,  and  the  appointment 
of  Bradway  as  its  agent  for  that  purpose  in  Philadelphia,  was  a 
voluntary  consent  to  subject  itself  to  that  jurisdiction.  Clearly, 
the  complainant  cannot  object  to  the  validity  of  the  law. 

Second.  Can  its  creditors  object?  It  is  difficult  to  see  how 
they  can  be  injured  by  it.  Take  the  present  case.  If  Mr.  Cham- 
bers had  desired  to  apply  this  debt  due  him  from  complainant  to 
a  particular  purpose — for  example,  the  pa>ment  in  whole  or  in 
part  of  a  particular  creditor  of  his — he  could  have  done  so  by 
prompt  action  for  that  purpose,  or  he  could,  by  a  proper  assign- 
ment, have  divided  it  equally  among  all  his  creditors,  and  his 
bona  fide  assignee,  whether  he  held  for  himself  individually  or  in 
trust  for  the  several  creditors  of  Chambers,  if,  in  fact,  prior  in 
time,  would  have  been  first  in  right.  But  Chambers  took  no  such 
action  for  over  six  months,  with  the  result  that  two  of  his  creditors 
did  take  prompt  action,  through  the  courts  of  Pennsylvania,  to 
forcibly  apply  the  amount  due  Chambers  from  complainant  to  the 
payment  of  their  debts  against  Chambers. 

Npw  I  can  find  no  injustice  in  such  proceeding.  It  is  the  or- 
dinary process  of  attachment  and  garnishment  in  use  in  all  juris- 
dictions deriving  their  laws  from  England.  And  it  is  difficult  to 
perceive  what  difference  it  makes  to  Chambers,  or  his  subsequent 
assignee,  whether  it  be  instituted  in  Pennsylvania  as  the  conven- 
tional domicile  of  the  garnishee,  or  in  Connecticut,  its  actual 
domicile.  Wherever  instituted,  the  result  is  the  same,  viz.,  to 
forcibly  apply  a  debt  due  from  complainant  to  Chambers  to  the 
payment,/>ro  tanto,  of  a  debt  due  from  Chambers  to  a  third  party 
who  is  the  actor  in  the  suit.  The  possible  hardship  and  injustice 
to  Chambers  in  such  exercise  of  power  arises  out  of  the  proceed- 
ing against  him,  as  an  absent  debtor,  by  publication  and  without 
personal  notice  served  within  the  territorial  jurisdiction.  But 
this  is  a  source  of  hardship  and  injustice  common  to  all  proceed- 
ings by  foreign  attachment  wherever  taken.     It  was  no  greater 


ATTACHMENT   AND   SITUS  OF   A   DEBT.  427 

hardship  or  injustice  to  him  to  compel  him  to  go  to  Pennsylvania 
than  to  Connecticut  to  defend  unjust  or  unfounded  claims,  if  any, 
set  up  against  him.  No  question  can  possibly  be  raised  as  to  the 
right  of  the  legislature  of  Connecticut,  complainant's  domicile  of 
origin,  to  authorize  its  court  to  entertain  such  jurisdiction. 

In  every  case  the  means  of  notice  to  the  defendant  in  attach- 
ment of  such  claims  is  the  same,  viz.,  either  by  inquiry — in  this 
case — of  his  debtor  (the  garnishee)  why  he  does  not  pay  his  debt 
to  him  (Chambers)  ;  or,  if  tangible  chattels  be  seized,  then  by 
visual  observation  of  such  seizure.  This  mode  of  notice,  of 
course,  is  in  addition  to  the  usual  statutory  notice  by  publication 
in  use  by  all  jurisdictions. 

But  it  is  said  that  the  subject-matter  of  seizure,  the  res,  must 
be  within  the  jurisdiction  of  the  court  where  the  attachment  pro- 
ceeding is  taken,  otherwise  the  assumption  of  jurisdiction  over  it 
is  unwarranted  by  general  international  law  founded  upon  funda- 
mental principles  of  justice;  and  that,  in  the  case  of  a  debt  at- 
tached, the  debt  is  the  res,  and  cannot  be  said  to  be  in  a  jurisdic- 
tion where  neither  the  debtor  nor  creditor  is  domiciled;  and  this 
is  the  precise  point  of  the  argument  made  by  Mr.  Crandall.  He 
says  that  the  res  attempted  to  be  dealt  with  by  the  Pennsylvania 
court  was  never  within  its  jurisdiction,  because  it  was  owing  by 
a  corporation  domiciled  in  Connecticut  to  a  creditor  domiciled  in 
New  Jersey.     Let  us  see  what  substance  there  i's  in  this  point. 

The  precise  res  here  attached  was  a  chose  in  action — the  right 
of  Chambers  to  sue  the  complainant  and  recover  judgment  against 
it,  and  seize  its  property.  Now,  by  the  statute  of  Pennsylvania, 
it  seems  to  me  that  he  had  the  right  to  cross  into  Philadelphia  and 
bring  an  action  against  complainant  in  the  Pennsylvania  courts 
upon  his  policy,  not  as  an  artificial  person  casually  and  temporarily 
present  in  the  state,  but  as  being  provisionally  domiciled  there  for 
the  purpose  of  being  sued.  That  statute  is  wide  and  sweeping  in 
its  provisions,  and  does  not  limit  the  right  of  suit  to  residents  of 
Pennsylvania  upon  contracts  made  in  that  state,  as  did  the  statute 
in  question  in  Lafayette  v.  French,  18  How.  404,  or  that  in  ques- 
tion in  Meyer  v.  Insurance  Co.,  40  Md.  575.  If,  then,  the  courts 
of  Pennsylvania  were  open,  as  the  course  of  decisions  shows  them 


428  PRIVATE   INTERNATIONAL   LAW. 

to  be,  to  Mr.  Chambers  to  sue  the  complainant  on  his  policy  in  the 
State  of  Pennsylvania,  why  was  not  the  right  so  to  do  attachable  ? 
If  the  debt  had  been  due  to  Mr.  Chambers  from  a  natural  person 
domiciled  in  Connecticut,  and  that  natural  person  had  been  pres- 
ent in  Pennsylvania,  not  casually  and  temporarily,  but  with  a  per- 
manent place  of  business  there,  and  had  been  served  with  the  at- 
tachment at  the  suit  of  the  present  contestants  against  Chambers 
as  a  foreign  resident,  would  not  that  individual  debtor  have  been 
properly  garnished  in  the  State  of  Pennsylvania  ?  It  seems  to  me 
that  he  would,  and  that  the  right  of  action  would,  for  the  time 
being,  have  been  within  the  jurisdiction  of  that  court.  Judge 
Waples,  in  his  book  on  Attachments  (at  p.  249),  uses  this  lan- 
guage, which  seems  to  be  in  point : 

"The  credit  is  attachable  when  it  has  followed  the  person 
garnished  (who  is  the  debtor  to  the  absent  defendant)  and  has 
thus  come  within  the  jurisdiction;  when  it  is  collectible  within  the 
jurisdiction." 

If,  then,  Mr.  Chambers  could  have  brought  suit  against  com- 
plainant in  the  Philadelphia  courts  upon  his  claim  and  recovered 
judgment  against  it,  binding  in  all  jurisdictions,  I  see  no  reason 
why  such  right  of  action  could  not  be  attached  in  the  Pennsylvania 
courts. 

Substantially  that  proposition  was  decided  by  the  supreme 
court  of  Massachusetts  in  the  case  of  National  Bank  of  Com- 
merce v.  Huntington,  Little  Rock  and  Fort  Smith  Railroad  Co., 
as  trustees  (garnishees) ,  129  Mass.  444.  In  that  case  the  plain- 
tiff sued  out  trustee  process,  presumably  by  foreign  attachment, 
against  the  railroad  company  by  reason  of  a  debt  it  owed  to  the 
defendant  Huntington,  who  was  a  debtor  of  the  plaintiff.  That 
company  was  domiciled  wholly  in  the  State  of  Arkansas,  having 
been  created  by  the  laws  of  that  state,  and  all  its  property  was 
there  situate,  but  it  had  an  office  for  the  transaction  of  all  its  or- 
dinary financial  business  in  the  city  of  Boston.  The  opinion  of 
the  court,  after  showing  by  citation  of  previous  cases  that  the  laws 
of  that  state  at  one  time  were  unfavorable  to  trustee  process 
against  corporations  (see  Drake  Att.  (6th  ed.)  §  478),  proceeded 
to  say  (at  p.  446)  that  the  law  was  amended  "by  providing  that 


ATTACHMENT    AND   SITUS   OF   A   DEBT.  429 

non-residents  and  corporations  established  by  the  laws  of  another 
state  may  be  summoned  as  trustees,  if  they  have  a  usual  place  of 
business  in  this  commonwealth.  Statutes  of  iS/O  ch.  194."  And 
it  was  held  in  that  case,  after  consideration  of  all  the  cases,  that 
the  railway  company  could  be  garnished  as  trustees  of  a  debt  they 
owed  to  Huntington,  the  defendant  in  the  suit.  This  language 
is  used  (at  p.  449)  :  "There  is  no  doubt  that  a  state  may  prohibit 
foreign  corporations  from  transacting  business  within  its  limits, 
or  it  may  permit  them  to  do  so  upon  such  proper  terms  and  con- 
ditions as  it  may  prescribe.  It  is  clearly  to  be  implied  from  the 
statute  that  a  foreign  corporation  may  have  a  usual  place  for  the 
transaction  of  its  business  within  this  commonwealth ;  and  it  is 
equally  clear  that,  in  exercising  such  privilege,  it  is  subject  to  the 
provisions  of  this  statute,  and  is  liable  to  be  summoned  as  trustee." 

I  see  no  difference  between  the  statute  of  Massachusetts  just 
recited,  giving  in  express  terms  the  power  to  garnishee  foreign 
corporations,  and  the  construction  put  upon  the  Pennsylvania 
statute  by  the  courts  of  that  state.  Each  provides  and  holds,  in 
effect,  that  a  foreign  corporation  which  is  a  debtor  and  has  a  place 
of  business  or  agent,  for  the  purpose  of  being  sued,  in  the  re- 
spective states,  may  be  made  a  garnishee  or  trustee  of  a  debt  due 
from  it. 

The  question  whether  or  not  a  certain  statutory  provision 
does  have  the  effect  of  giving  the  right  of  garnishment,  and 
whether  that  statutory  regulation  has  been  followed  in  a  particu- 
lar proceeding,  is  a  matter  entirely  for  the  construction  of  the 
courts  of  the  jurisdiction.  Their  decision  upon  the  subject  is 
final,  and  we  cannot  go  behind  it. 

The  precise  question  now  under  consideration  is  not  whether 
the  statutes  of  a  particular  state  have,  in  fact,  properly  construed, 
subjected  foreign  corporations  doing  business  in  the  state  to  proc- 
ess of  garnishment  on  account  of  debts  due  by  them  to  non-resi- 
dents, but  whether  such  legislation  is  beyond  the  power  of  the 
state,  because  contrary  to  international  law  and  fundamental  prin- 
ciples of  justice.  On  this  point  the  weight  of  authority,  as  I 
think,  is  clearly  in  favor  of  its  validity.  Fithian  v.  New  York 
and  Erie  Railroad  Co.,  3/  Pa.  St.  114;  Barr  v.  King,  96  Pa.  St. 


430  PRIVATE   INTERNATIONAL   LAW. 

485;  Railroad  v.  People,  31  Ohio  St.  537;  McAllister  v.  Penn 
Insurance  Co.,  28  Mo.  214;  Brouser  v.  New  England  Fire  In- 
surance Co.,  21  Wis.  512;  Hannibal  and  St.  Joseph  Railroad  Co. 
v.  Crane,  102  III.  249;  Selma  Railroad  Co.  v.  Tyson,  48  Ga.  352; 
National  Bank  v.  Burch,  80  Mich.  242;  Railroad  Company  v. 
Thompson,  31  Kan.  180;  and  see  other  cases  cited;  8  Am.  &  Eng. 
Encycl  L.  pp.  1131,  1132. 

I  have  already  shown,  to  my  own  satisfaction  at  least,  that  no 
injustice  is  done  the  creditor  by  such  legislation.  He  must,  in 
this  case,  be  presumed  to  have  contracted  with  the  complainant 
with  the  knowledge,  which  is  quite  common,  that  the  various  in- 
surance companies  of  this  country,  though  chartered  and  having 
their  legal  domicile  in  some  one  particular  state,  do,  in  fact,  do 
business  in  many  states  upon  terms  of  establishing  and  maintain- 
ing in  each  of  them  a  domicile  for  purposes  of  suits  at  law.  His 
action  against  the  complainant,  commenced  in  the  Camden  circuit 
court  by  process  served  on  its  agent  there,  is  a  striking  illustra- 
tion of  the  situation  of  affairs  in  this  respect. 

In  the  leading  case  of  Embree  &  Collins  v.  Hanna,  5  Johns. 
101,  the  case  was  this:  A  resident  of  Maryland  was  indebted  to 
a  creditor,  who  was  a  non-resident  of  Maryland,  and  a  creditor 
of  this  creditor,  who  was  also  a  non-resident  of  Maryland,  sued 
out  an  attachment  from  the  court  of  Maryland,  pursuant  to  the 
laws  of  that  state,  and  garnished  the  Maryland  debtor.  While 
these  proceedings  were  pending,  the  Maryland  debtor  (garni- 
shee), happening  to  be  in  New  York,  was  there  arrested  at  the 
suit  of  his  immediate  creditor  and  pleaded  the  Maryland  attach- 
ment proceedings  in  abatement,  and  it  was  held  in  an  opinion 
delivered  by  Chief-Justice  Kent,  wherein  he  reviews  all  the  au- 
thorities up  to  that  time,  that  the  plea  was  good. 

Mr.  Brown,  in  his  treatise  on  Jurisdiction  (at  §  150),  lays 
down  the  rule  that  "all  the  property  in  debts  belongs  to  the  credi- 
tors to  whom  they  are  payable,  and  follows  the  creditor's  domicile. 
His  domicile  fixes  the  situs  of  this  species  of  property." 

And  he  seems  to  be  supported  by  Mr.  Justice  Story  (Conn1. 
L.  §  399)  and  by  the  other  authorities  cited  by  him. 

Mr.  Justice  Greer,  in  Caskie  v.  Webster,  2  Wall.  Jr.  131,  uses 


ATTACHMENT  AND   SITUS  OF   A   DEBT.  431 

this  language:  "A  debt  is  a  mere  incorporeal  right.     It  has  no 
situs,  and  follows  the  person  of  the  creditor." 

In  Williams  v.  Ingersoll,  89  N.  Y.  508,  the  learned  judge 
(Earl)  says:  "A  debt  always  under  general  jurisprudence  has  its 
situs  either  at  the  domicile  of  the  creditor  or  where  the  written 
obligation  upon  which  it  is  due  is  held,  and  not  at  the  situs  of  the 
debtor."     And  to  the  same  effect  is  Mr.  Wharton  (Conft.  L.  §§ 

It  is  to  be  observed  that  the  policy  of  insurance  in  this  case 
fixes  no  place  for  the  payment  of  any  loss  incurred  under  it.  It 
appears  on  its  face  to  have  been  negotiated  at  and  issued  by  the 
Camden  agency  of  the  complainant. 

And  see,  on  the  subject  of  the  situs  of  choses  in  action,  Mc- 
Dougal  v.  Paige,  33  Vt.  187;  S.  C,  45  Am.  Rep.  602,  where  it 
was  held,  after  a  consideration  of  numerous  authorities,  that  a 
debt  due  by  a  citizen  of  Vermont  to  a  citizen  and  resident  of 
Canada  was  not  discharged  by  a  certificate  of  discharge  in  bank- 
ruptcy of  the  Vermont  debtor  under  the  Federal  Bankrupt  law, 
for  the  reason  that  the  situs  of  the  debt  was  at  the  domicile  of  the 
creditor,  and  so  beyond  the  jurisdiction  of  the  federal  court. 

To  the  same  effect  is  Speed  v.  May,  1/  Pa.  St.  pi.  And  see 
the  opinion  of  Mr.  Justice  Peckham,  in  Guillander  v.  Howell,  55 
N.  Y.  657  (at  p.  661),  where  the  clear  distinction  in  this  respect 
between  debts  and  movables,  consisting  of  tangible  property  ca- 
pable of  seizure  and  levy,  is  pointed  out,  and  it  is  held  that  the 
latter  may  have  a  situs  independent  of  the  domicile  of  the  owner, 
while  the  former  (debts)  are  incapable  of  such  situs  and  follow 
the  domicile  of  the  owner,  who  is  the  creditor.  And  this  seems 
to  be  necessarily  so  upon  principle,  for  a  debt  is  an  intangible 
thing  and  has  no  actual  situs,  unless  such  be  attached  to  the  evi- 
dence of  the  debt,  and  that  is  usually  in  the  actual  possession,  as 
in  this  case,  of  the  creditor. 

In  fact,  the  burden  of  the  argument  of  Mr.  Crandall  was  that 
the  debt  due  from  the  complainant  to  Chambers  had  its  situs  in 
New  Jersey,  and  therefore  was  not  within  the  jurisdiction  of  the 
Pennslvyania  courts.  But  the  difficulty  with  this  argument  is 
that  it  goes  too  far,  and  would  defeat  all  foreign  attachments  so 


432  PRIVATE   INTERNATIONAL   LAW. 

far  as  relates  to  reaching  debts  due  the  defendant  in  attachment, 
because  they  would  all  be  held  to  have  their  situs  with  the  non- 
resident defendant  out  of  the  state,  and  so  be  beyond  the  juris- 
diction of  the  state. 

Some  confusion  and  seeming  inconsistencies  are  found  in  the 
books,  growing  out  of  a  failure  to  distinguish  between  the  char- 
acter of  the  two  kinds  of  chattels  which  are  sought  to  be  reached 
by  foreign  attachment,  viz.,  tangible  chattels  and  choses  in  action. 

In  order  to  obtain  a  lien  upon  tangible  chattels,  which  alone 
are  subject  to  seizure  and  levy,  it  is  necessary  that  there  should 
be  an  actual  or  constructive  manucaption  by  the  officer.  It  is 
certainly  so  in  this  state  under  our  system  of  procedure,  and  I 
think  also  in  most  of  the  other  jurisdictions.  To  effect  this  actual 
seizure  and  levy  it  is  necessary  that  the  chattel  should  be  within 
the  jurisdiction  and  within  the  physical  power  and  reach  of  the 
officer.  Hence  the  canon  that  the  res  must  be  within  the  juris- 
diction. The  failure  to  distinguish  in  this  respect  between  tangible 
chattels  and  choses  in  action  has  led  to  the  erroneous  notion  that 
the  debt  or  right  of  action,  in  order  to  be  reached,  must  also  be 
within  the  jurisdiction.  But  this  is  not  so,  for  the  reason  that  the 
debt  is  incapable  of  actual  seizure,  and  hence  none  is  necessary. 
On  this  point  I  adopt  the  language  of  the  supreme  court  of  Ver- 
mont in  Cahoon  v.  Morgan,  38  Vt.  236:  "It  is  true  that  the  trustee 
process  is  sometimes  called  'attaching  a  debt,'  because  it  creates  a 
lien  upon  the  debt  as  attachment  does  upon  personal  property. 
But  the  validity  of  the  two  kinds  of  liens  rests  on  wholly  different 
grounds.  Attachment  of  personal  property  must  be  by  taking 
possession  of  it.  But  no  possession  can  be  taken  of  a  debt.  To 
make  the  lien  valid  against  the  debt,  all  that  is  required  is  notice 
to  the  debtor  (garnishee)  of  the  suit,  a  mere  summons." 

In  cases  of  seizure  of  tangible  chattels  it  is  also  necessary  that 
there  should  be  a  declaration  in  the  nature  of  a  publication  of  the 
attachment  in  the  presence  of  the  person  having  the  custody  of 
the  chattels  seized,  and  this  provision  has  led  to  the,  as  I  think, 
erroneous  notion  that  the  person  so  having  the  custody  may  be 
garnished,  and  so  made  in  some  way  and  to  some  extent  personally 
liable  as  such  because  of  his  custody.     But  such  declaration  or 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  433 

publication  in  the  case  of  a  tangible  chattel  is  not,  properly  speak- 
ing, a  "garnishment,"  and  as  frequently  as  the  question  has  arisen 
it  has  been  held  that  no  such  liability  can  attach  to  the  mere  cus- 
tody of  chattels,  provided  the  custodian  is  ready  and  willing  to 
yield  their  possession  to  the  custody  of  the  law. 

It  follows  that  the  real  and  only  liability  of  a  party  as  gar- 
nishee is  by  reason  of  his  owing  a  debt  to  the  defendant  in  the 
suit,  and  the  garnishment  consists  in  nothing  more  than  a  "warn- 
ing" to  him  not  to  pay  the  debt  to  his  creditor  until  the  plaintiff's 
debt  is  satisfied.  In  process  of  garnishment,  as  thus  understood, 
the  fact  that  the  debt  subject  to  be  garnished  has  its  situs  out  of 
the  jurisdiction  has  never  been  held  to  stand  in  the  way  of  the 
process  of  the  court. 

I  come,  therefore,  to  the  conclusion  that  the  real  and  only 
ground  of  jurisdiction  in  case  of  attachment,  over  choses  in  action, 
is  the  service,  within  the  jurisdiction,  of  warning  upon  the  debtor; 
and  when  that  is  done  jurisdiction  is  obtained. 

It  is  not  necessary  in  this  case  to  determine  whether  such 
service  upon  a  debtor  casually  and  for  a  temporary  purpose  with- 
in the  jurisdiction  is  sufficient  or  not.  For  in  this  case,  as  I  have 
concluded,  the  complainant  had  a  permanent  business  residence 
in  the  State  of  Pennsylvania. 

The  point  in  this  behalf  made  by  Mr.  Crandall  was  taken  and 
overruled  by  Lord  Holt  two  hundred  years  ago,  as  reported  in 
Andrews  v.  Clerke,  Carth.  25.  There  the  garnishee  pleaded  to 
the  jurisdiction  that  the  debt  due  from  him  to  the  defendant,  and 
the  contract  on  which  it  was  founded,  arose  and  was  made  out  of 
the  jurisdiction  of  the  sheriff  of  London's  court,  which  plea  was 
overruled,  and  thereupon  a  prohibition  was  moved  for  at  the  bar 
of  the  queen's  bench,  which  was  denied  "because  the  debt  alwavs 
follows  the  person  of  the  debtor  (creditor)  and  it  is  not  material 
where  it  was  contracted,  for  it  was  always  the  custom  in  London 
to  attach  debts  upon  bills  of  exchange  and  goldsmith's  notes,  &c., 
if  the  goldsmith  who  gave  the  note,  or  the  person  to  whom  the 
bill  is  directed  (acceptor),  liveth  within  the  city,  without  any  re- 
spect had  to  the  place  where  the  debt  was  contracted."  The  de- 
fendant in  this  case  was,  of  course,  a  non-resident. 


434  PRIVATE   INTERNATIONAL   LAW. 

To  the  same  effect  is  Mallum  v.  Hern,  cited  in  2  Show.  *jO?, 
decided  in  the  king's  bench,  in  19  Charles  II.;  and  see  Harring- 
ton v.  MacMorris,  5  Taunt,  228,  and  Banks  v.  Self,  5  Taunt.  233. 
Mr.  Locke,  in  his  treatise  on  Foreign  Attachments  (at  p.  *2p), 
says: 

"It  has  been  said  that  debts  arising  out  of  the  jurisdiction 
are  not  attachable,  and  that  a  prohibition  will  lie.  It  is,  however, 
the  constant  practice  of  the  court  to  attach  indiscriminately  debts 
of  this  description,  so  that  it  is  quite  clear  that  with  regard  to 
simple  contract  debts,  as  they  follow  the  person,  they  may  be  at- 
tached by  serving  the  debtor  with  an  attachment  within  the  city. 
And  this  is  the  course  ordinarily  pursued  with  respect  to  bankers 
and  others  carrying  on  business  out  of  the  city.  If  an  attachment 
be  served  upon  any  one  of  the  partners  of  a  firm,  while  he  is  with- 
in the  city,  it  is  sufficient,  although  they  carry  on  their  business 
out  of  the  city.  With  respect  to  goods,  they  must  be  within  the 
jurisdiction  or  they  cannot  be  attached  in  the  hands  of  the  gar- 
nishee." 

These  authorities  show  conclusively  that  the  fact  that  'he 
situs  of  the  debt  attached  by  garnishment  of  the  debtor  is  not 
within  the  jurisdiction  is  no  bar  to  attachment  proceedings,  pro- 
vided the  debtor  can  be  lawfully  garnished. 

The  old  practice  in  the  city  of  London  courts,  as  stated  by 
Mr.  Locke,  agrees  with  that  upheld  by  the  courts  of  this  country 
in  the  numerous  cases  above  cited.  The  mere  fact  that  the  legal 
domicile  of  the  garnishee  is  without  the  jurisdiction  is  not  a  pro- 
tection against  his  garnishment.  Take  the  case  of  the  thousands 
of  persons  engaged  in  business  in  the  great  cities  of  New  York 
and  Philadelphia,  with  all  their  business  houses  there,  but  their 
legal  domicile  of  residence  in  this  state.  With  what  sort  of  reason 
can  it  be  said  that  none  of  those  can  be  subjected  to  garnishment 
in  the  jurisdictions  where  their  business  is  carried  on,  because 
their  family  homes  are  in  another  state  ? 

A  line  of  decided  cases  was  cited  by  Mr.  Crandall  in  opposi- 
tion to  these  conclusions,  which  will  now  be  considered.  First 
of  these  is  Bozven  v.  Pope,  125  III.  28;  17  N.  E.  Rep.  64.  The 
suit  was  by  a  hardware  company  of  Missouri,  by  foreign  attach- 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  435 

ment  against  Bowen,  a  resident  of  Missouri,  as  defendant,  and 
Pope,  Lockwood  and  Heitz,  copartners,  residents  of  Illinois,  as 
garnishees.  The  effort  was  to  charge  the  garnishees  on  two 
separate  matters — first,  a  debt  due  by  them  to  Bowen,  which  was 
promptly  admitted  and  paid  \second — out  of  which  the  controversy 
arose — by  reason  that  one  of  the  firm  (Lockwood),  at  the  mo- 
ment of  the  service  of  the  attachment  in  Illinois  upon  his  partners, 
was  in  the  State  of  Missouri  and  had  in  his  manual  possession  cer- 
tain promissory  notes  belonging  to  Bowen,  the  defendant  in  at- 
tachment, which,  after  telegraphic  notice  of  the  attachment,  he 
delivered  to  Bowen  on  his  demand.  It  was  held  that  the  gar- 
nishees were  not  liable  on  account  of  such  possession  and  deliv- 
ery. And  I  venture  to  say  that  it  is  difficult  to  imagine  what  ar- 
gument having  even  plausibility  could  have  been  made  against 
this  result.  Promissory  notes  are  not  capable  of  seizure  and  levy, 
and  the  only  mode  of  reaching  the  debt  which  they  prove  is  by 
garnishment  of  the  makers,  and  not  of  the  mere  custodian  of  the 
paper  script.  Be  that  as  it  may,  the  case  has  no  application  here, 
because  the  facts  are  different. 

The  other  cases  were  decided  in  New  York.  The  first  is 
Plimpton  v.  Bigelow,  29  Hun  362;  93  N.  Y.  592.  The  plaintiffs, 
residents  of  Massachusetts,  instituted  attachment  proceedings  in 
New  York  against  the  defendant,  a  resident  of  Pennsylvania,  as 
their  debtor,  and  attempted,  under  a  warrant  of  attachment — a 
proceeding  under  the  New  York  code — to  levy  upon  certain  shares 
of  stock  owned  by  defendant  in  a  corporation  of  Pennsylvania, 
incorporated  under  the  laws  of  that  state,  which  had  a  place  of 
business  in  New  York  city,  with  a  president  and  other  officers 
continually  present,  and  it  was  held  in  the  supreme  court  that 
such  levy  was  good.  This  judgment  was  reversed  on  ap- 
peal, on  the  ground  that  the  shares  of  stock — the  res — were 
not  within  the  jurisdiction  of  the  court.  And  this  was  so 
plain  a  proposition  that  I  do  not  see  how  a  question  could  be 
raised  as  to  it.  In  discussing  the  general  question,  after  dealing 
with  the  provisions  of  the  New  York  code,  the  learned  Chief- 
Judge  Andrews  (at  />.  601)  proceeds: 

"It  is  not  necessary  to  this  case  to  define  the  limits  of  legis- 


436  PRIVATE   INTERNATIONAL  LAW. 

lative  power,  in  subjecting  intangible  property  to  attachment,  by 
notice  served  upon  such  person  or  corporation  as  may  be  desig- 
nated by  the  legislature.  Manifestly  the  res  cannot  be  within  the 
jurisdiction,  as  a  mere  consequence  of  a  legislative  declaration, 
when  the  actual  locality  is  undeniably  elsewhere.  But  in  respect 
to  intangible  interests,  as  we  have  said,  there  can  be  no  actual 
seizure  of  the  thing,  and  it  can  be  bound  only  by  notice  to  some 
one  who  represents  the  thing.  In  case  of  a  debt,  notice  to  the 
debtor  residing  within  the  jurisdiction  is  the  ordinary  proceeding 
to  attach  the  debt,  and  if  the  debtor  is  a  corporation,  and  the  cor- 
poration is  a  domestic  one,  there  is  no  difficulty.  But  in  some  of 
the  states,  foreign  corporations,  having  an  agent  or  place  of  busi- 
ness within  the  state,  may  be  charged  under  what  is  called  the 
trustee  process,  or  as  garnishee.  In  these  proceedings  the  trustee 
or  garnishee  is  joined  with  the  principal  defendant  as  a  party  to 
the  action,  and  the  debt  owing  by  the  trustee  or  garnishee  is  as- 
certained, and  the  liability  of  the  trustee  and  garnishee  is  adjudged 
in  the  action.  There  may  be  no  difficulty  upon  principle  in  com- 
pelling a  corporation,  which  has  an  agent  and  officer  in  another 
state  and  is  transacting  business  there,  to  respond  in  garnishment 
proceedings  for  the  debt,  although  the  creditor — the  principal  de- 
fendant— lis  a  non-resident,  and  if  bound  to  respond  it  is  certainly 
just  that  the  judgment  which  compels  the  corporation  to  pay  the 
debt  to  the  plaintiff  should  protect  it  in  making  such  payment* 
against  a  subsequent  claim  by  its  creditor.  We  do  not  enter  into 
this  question  here.  But  whatever  view  may  be  taken  as  to  the 
right  to  attach  a  debt  owing  by  a  foreign  corporation  to  a  non- 
resident, by  service  of  notice  on  an  agent  of  the  corporation  with- 
in the  jurisdiction,  we  think  in  respect  to  corporate  stock,  which 
is  not  a  debt  of  the  corporation,  in  any  proper  sense,  it  would  be 
contrary  to  principle  to  hold  that  it  can  be  reached  by  such  a  no- 
tice. We  are,  therefore,  of  the  opinion  that  the  fundamental  con- 
dition of  attachment  proceedings  that  the  res  must  be  within  the 
jurisdiction  of  the  court  in  order  to  an  effectual  seizure,  is  not 
answered  in  respect  to  shares  in  a  foreign  corporation  by  the  pres- 
ence here  of  its  officers,  or  by  the  fact  that  the  corporation  has 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  437 

property  and  is  transacting  business  here,  and  that  section  647 
must  be  construed  as  applying  to  domestic  corporations  only." 

It  is  plain,  from  this  extract,  that  the  decision  does  not  touch 
the  question  involved  in  our  case,  and  the  dicta  are  favorable  to 
the  jurisdiction  here  brought  in  question.  It  will  be  seen  here- 
after that  the  learned  judge,  who  thus  wrote,  declined  in  a  later 
case  to  follow  his  suggestions  as  to  jurisdiction  over  corporations 
with  foreign  domicile  of  origin. 

The  next  case  is  Strauss  &  Terry  v.  Chicago  Glycerine  Co., 
46  Hun  216,  where  the  opinion  is  found.  The  judgment  was 
affirmed  on  appeal  (108  N.  Y.  654),  without  opinion.  In  that 
case  an  English  fire  insurance  company  had  met  with  a  loss  by 
destruction  by  fire  of  property  in  Chicago,  owned  by  the  defend- 
ant, upon  a  policy  negotiated  and  issued  there.  It  had  also  an 
agency  in  New  York.  An  attachment  was  issued  by  plaintiffs, 
New  York  creditors  of  the  defendant,  and  garnishee  process  was 
served  on  the  insurance  company.  A  motion  was  made  and  re- 
fused, at  special  term,  to  set  aside  the  attachment,  because  not 
efficient  under  the  code.  Upon  appeal  to  the  general  term  of  the 
supreme  court  the  motion  prevailed  upon  grounds  thus  stated  by 
the  learned  judge:  It  will  not  be  necessary  to  determine  whether 
a  lawful  attachment  of  the  indebtedness  could  be  made  under  sub- 
division 2  of  section  649  of  the  code  of  civil  procedure,  without 
taking  actual  possession  of  the  policy  itself,  for  this  policy  was 
not  issued  by  the  Xew  York  agency,  but  the  negotiations  for  it 
took  place  in  the  city  of  Chicago,  and  it  was  there  delivered  to 
and  held  by  the  defendant.  The  indebtedness,  accordingly,  *vas 
not  property  which  the  defendant  had  within  this  state,  and  under 
the  construction  given  to  the  code  of  civil  procedure,  in  Plimp- 
ton v.  Bigelow,  93  iV.  Y.  592,  it  could  not  be  seized  under  this  at- 
tachment. It  is  true  that  the  service  of  the  attachment  in  that 
case  was  attempted  to  be  made  upon  shares  of  the  defendant  in 
the  corporate  stock  of  a  company,  but  that  circumstance  does  not 
seem  to  render  the  decision  then  made  inapplicable  to  this  case. 
[The  judge  here  overlooks  the  declaration  in  the  other  opinion 
that  shares  of  stock  are  in  no  sense  a  debt.]  By  the  shares  which 
the  defendant  held,  he  was  entitled  to  a  proportionate  part  of  the 


438  PRIVATE   INTERNATIONAL  LAW. 

earnings  of  the  corporation  and  if  its  property  upon  its  dissolution, 
while  in  the  present  case  the  defendant  was  entitled,  under  the 
policy,  to  the  payment  of  so  much  money  as  would  compensate  it 
for  the  loss  sustained  by  the  destruction  of  its  property  by  fire, 
so  far  as  the  policy  covered  such  loss.  The  property  itself  in  each 
case  has  several  attributes  of  similitude,  rendering  the  decision 
in  the  case  referred  to  applicable  to  the  service  made  of  the  at- 
tachment in  this  action."  After  referring  to  decisions  of  other 
states  to  the  contrary,  he  proceeds:  ''But  it  is  not  important  to 
pursue  the  consideration  of  other  cases,  since  that  of  Plimpton 
v.  Bigelow,  supra,  maintains  the  general  proposition  that  the 
presence  of  the  person  or  thing  within  the  state  is  indispensable 
to  the  power  of  the  court  to  acquire  jurisdiction  over  it  in  this 
manner." 

It  is  here  to  be  observed  that  the  only  part  of  the  opinion  in 
the  previous  case  of  Plimpton  v.  Bigelow,  which  could  apply  to 
the  later  one,  was  this  expression :  "In  case  of  a  debt,  notice 
to  the  debtor  residing  within  the  jurisdiction  is  the  ordinary 
proceeding  to  attach  the  debt."  There  is  no  warrant  in  that 
previous  opinion  for  the  notion  that  the  relation  between  a  cor- 
poration and  its  stockholders  is  that  of  debtor  and  creditor. 
But  the  contrary  is  distinctly  affirmed,  and  the  decision  is  put 
on  other  grounds.  I  feel  confident  that  the  reason  for  the  deci- 
sion in  46  Hun  is  entirely  fallacious,  for  the  reason  that  there  is, 
in  fact,  no  analogy,  for  present  purposes,  between  a  debt  due  by 
a  corporation  and  its  obligation  to  its  stockholders.  The  latter, 
for  purposes  of  book-keeping,  is  called  a  debt,  but  no  suit  can 
be  brought  upon  it  as  for  a  debt;  and  that  is  the  test  of  a  debt 
for  purposes  of  garnishment.  Drake  Att.  §  541  et  seq.  Stock 
in  a  corporation  cannot  be  levied  upon  by  an  ordinary  execution 
against  the  holder,  except  by  special  statutory  provision,  and  it 
would  be  most  unjust  to  hold  a  corporation  liable  as  garnishee 
upon  its  stock  when  it  cannot  relieve  itself  from  liability  by  de- 
livering the  stock  over  to  the  sheriff  or  other  officer  serving  the 
writ. 

The  next  case  is  Douglass  v.  Phoenix  Insurance  Co.,  138 
N.  Y.  209.     In  that  case  the  insurance  company,  defendant,  had 


ATTACHMENT   AND   SITUS  OF   A   DEBT.  439 

its  legal  domicile  in  New  York,  and  owed  to  Douglass,  the  plaint- 
iff, also  a  resident  of  New  York,  a  debt  arising  out  of  a  loss  by- 
fire  occurring  in  New  York.  The  insurance  company  also  did 
business  in  Massachusetts,  and  had  there  the  same  sort  of  domi- 
cile, for  the  purpose  of  suit,  that  complainant  herein  had  in  Penn- 
sylvania. This  debt  was  attached  by  a  creditor  of  Douglass,  re- 
siding out  of  New  York,  by  foreign  attachment  served  in  Massa- 
chusetts on  the  duly  authorized  agent  of  the  company  (at  p.  217), 
and  this  Massachusetts  proceeding  was  pleaded  to  an  action  af- 
terwards brought  by  Douglass  against  the  company  in  New  York, 
and  was  held  by  the  courts  of  that  state  to  be  no  defence. 

The  case  varies  in  its  facts  from  the  present  one  in  that  the 
insurer  (defendant  debtor)  had  the  same  legal  domicile  (New 
York)  with  the  insured  (plaintiff  creditor),  while  here  it  has  a 
different  domicile.  The  cases  would  be  parallel  if  the  insurance 
company  in  this  case  had  its  domicile  of  nativity  in  this  state. 
This  difference  may  of  itself  be  sufficient  to  distinguish  it  and 
prevent  its  application  here.  However,  it  is  undeniable  that  the 
opinion  states  propositions  which,  if  sound,  are  well-nigh  fatal  to 
the  claim  of  the  attaching  creditor  in  this  case,  and  therefore  merit 
consideration. 

It  was  conceded  in  that  case,  for  the  purposes  of  the  argument 
(at  p.  2ij),  that  by  the  laws  of  Massachusetts  the  debt  in  ques- 
tion was  properly  attachable  there  by  process  of  garnishment 
served  upon  the  local  agent  of  the  insurance  company,  and  that 
judgment  might  go  therein  against  it,  with  the  result  that  the 
insurers  might  be  compelled  to  make  double  payment.  Of  this 
the  learned  Chief-Judge  Andrews  (at  p.  221),  says:  "We  deem 
it  unnecessary  to  consider  the  position  of  the  defendant.  If  it 
may  be  subjected  to  embarrassment,  or  even  to  a  double  judg- 
ment, it  will  be  in  consequence  of  its  own  act  in  voluntarily  sub- 
jecting itself  to  the  laws  of  Massachusetts.  The  power  of  the 
court  to  grant  a  continuance  in  a  proper  case  will  generally  afford 
a  remedy  to  a  party  so  situated."  Here  I  understand  the  court 
to  refer  to  the  probability  that  the  Massachusetts  court  will  not 
proceed  with  its  judgment  in  attachment  against  the  garnishee 
upon  being  properly  informed  that  the  New  York  court  has  pro- 


440  PRIVATE    INTERNATIONAL   LAW. 

ceeded  to  judgment  against  him  in  New  York.  Now  it  is  to  be 
observed  that  the  complainant  in  this  case  has  tried  that  experi- 
ment. It  has  set  up  in  defence  to  garnishment  in  the  Datz  at- 
tachment suit  in  Pennsylvania  the  suit  brought  by  Chambers  in 
this  state,  and  the  Pennsylvania  court  has  refused  to  recognize  it, 
on  the  palpable  ground  that  the  Philadelphia  attachment,  being 
prior  in  time,  was  best  in  right,  and  worked  a  transfer  of  the 
credit  from  Chambers  to  the  plaintiff  in  attachment.  And  it  is 
difficult  to  see  why  it  was  not  quite  as  much  the  duty  of  the  New 
York  court,  in  the  Douglass  Case,  to  grant  the  continuance  as  it 
was  that  of  the  Massachusetts  court.  At  least,  the  propriety  of 
that  course  by  the  New  York  court  has  the  sanction  of  the  au- 
thority of  Chief-Justice  Kent  and  his  associates  in  the  leading 
case  of  Embree  v.  Hanna,  supra. 

And  I  further  suggest  that  the  fact  that  a  party  owing  a 
debt  may  be  subjected  to  the  injury  of  being  compelled  to  pay  it 
twice — once  directly  to  his  creditor,  and  then  again  to  a  third 
person  for  the  benefit  of  his  creditor,  and  so,  in  effect,  indirectly 
to  his  creditor  a  second  time — has  always  been  treated  by  courts 
desiring  to  do  justice  as  a  matter  of  serious  consideration,  and, 
in  fact,  the  one  thing  to  be  guarded  against.     Drake  Att.  6pp. 

The  learned  chief-judge  (at  p.  2ip)  proceeds:  "No  state  can 
subject  either  real  or  personal  property  out  of  the  jurisdiction  to 
its  laws.  *  *  *  It  is  a  fundamental  rule  that  in  attachment 
proceedings  the  res  must  be  within  the  jurisdiction  of  the  court 
issuing  the  process,  in  order  to  confer  jurisdiction.  In  the  case 
of  movables,  their  seizure  under  the  attachment  shows  that  their 
actual  situs  is  within  the  jurisdiction.  But  in  respect  to  intangi- 
ble interests,  debts,  choses  in  action,  bonds,  notes,  accounts,  inter- 
ests in  corporate  stocks  and  things  of  a  similar  nature,  the  ques- 
tion whether  the  res  is  within  the  jurisdiction  of  the  sovereignty 
where  the  process  is  issued,  is  not  so  readily  determined.  The 
general  rule  is  well  settled  that  the  situs  of  debts  and  obligations 
is  at  the  domicile  of  the  creditor.  But  the  attachment  laws  of 
our  own  and  of  other  states  recognize  the  right  of  a  creditor  of  a 
non-resident  to  attach  a  debt  owing  or  due  to  him  by  a  person 
within  the  jurisdiction  where  the  attachment  issues,  and  to  this 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  441 

extent  the  principle  has  been  sanctioned,  that  the  laws  of  a  state, 
for  the  purposes  of  attachment  proceedings,  may  fix  the  situs 
of  a  debt  at  the  domicile  of  the  debtor." 

Now,  here  I  venture  to  suggest  that  the  learned  judge  here 
concedes  the  whole  question,  because,  as  I  have  before  observed, 
if  the  situs  of  the  debt  is  at  the  domicile  of  the  creditor,  then  it 
never  can  come  under  the  jurisdiction  of  a  foreign  attachment 
against  him,  because  he  is  always  in  such  case  out  of  the  juris- 
diction of  the  court  issuing  the  attachment.  To  admit  that 
jurisdiction  may  be  exercised  over  a  debt  due  to  a  non-resident 
is  either  to  admit  that  the  presence  of  the  res  within  the  jurisdic- 
tion is  not  necessary,  or  else  to  assert,  as,  in  fact,  the  chief-judge 
does  assert,  that  a  state  may  arbitrarily  change  the  actual  situs  of 
a  chose  in  action  not  within  its  jurisdiction,  and  declare  it  to  be 
within  the  jurisdiction,  contrary  to  the  fact.  There  is  no  escape 
from  this  dilemma. 

The  chief-judge  proceeds:  "But,  we  repeat,  no  court  can 
acquire  jurisdiction  in  attachment  proceedings  unless  the  res  is 
either  actually  or  constructively  within  the  jurisdiction  [I  have 
already  shown  the  fallacy  of  this  position],  and  we  are  of  opinion 
that  the  attempt  to  execute  an  attachment  in  Massachusetts  upon 
the  debts  owing  to  the  plaintiff  by  the  insurance  company,  by 
serving  upon  the  agent  of  the  corporation  there,  and  without 
having  acquired  jurisdiction  of  the  plaintiff,  must  fail  for  the 
reason  that  the  debtor,  the  insurance  company,  was  in  no  iust  or 
legal  sense  a  resident  of  Massachusetts  and  had  no  domicile  there, 
and  was  not  the  agent  of  the  plaintiff,  and  that  in  contemplation 
of  law  the  company  and  the  debt  were  at  the  time  of  the  issuing 
of  the  attachment  in  the  State  of  New  York,  and  not  in  the 
State  of  Massachusetts."  As  a  reason  for  this  statement  he 
adds :  "If  in  this  case  the  insurance  company  could  be  regarded 
as  residing  or  having  its  domicile  in  Massachusetts  for  the  pur- 
pose of  attachment  proceedings,  it  likewise  has  a  domicile  in 
every  state  where  it  may  have  appointed  an  agent  under  similar 
laws,  and  so,  constructively,  upon  the  theory  upon  which  the 
Massachusetts  attachment  is  defended,  the  corporation  is  present 
as  debtor  to  the  plaintiff  in  every  state  where  such  agency  exists, 


442  PRIVATE   INTERNATIONAL  LAW. 

and  the  credit  is  also  present  at  the  same  time  in  each  of  such 
jurisdictions.  The  admission  of  such  a  principle  would  give  rise 
to  most  embarrassing  conflicts  of  jurisdiction  and  subject  credi- 
tors of  domestic  corporations  to  great  prejudice.  We  think  the 
rule  is  that  a  domestic  corporation  at  all  times  has  its  exclusive 
residence  and  domicile  in  the  jurisdiction  of  origin,  and  that  it 
cannot  be  garnished  in  another  jurisdiction  for  debts  owing  by- 
it  to  home  creditors,  so  as  to  make  the  attachment  effectual 
against  its  creditor  in  the  absence  of  jurisdiction  acquired  over 
the  person  of  such  creditor." 

Now,  with  great  deference,  I  venture  to  say  that  this  argu- 
ment, ab  inconvenienti,  so  forcibly  put,  has  not,  in  practice,  the 
weight  given  to  it  by  the  learned  chief-judge.  A  fundamental  and 
familiar  rule  intervenes  and  prevents  the  inconveniences  there 
mentioned  and  relied  on,  and  that  rule  is  that  the  first  assign- 
ment of  the  debt,  whether  it  be  by  the  voluntary  action  of  the 
creditor,  or  whether  it  be  by  operation  of  law,  such  as  insolvent 
or  bankrupt  proceedings,  or  proceedings  in  foreign  attachment, 
will  take  and  hold  the  debt,  and,  in  whatever  jurisdiction  that  as- 
signment is  set  up,  the  first  principles  of  justice  require  that  it 
should  be  recognized,  and  all  subsequent  assignments  or  attach- 
ments should  give  way  to  it.  This  fundamental  rule  of  justice, 
I  submit,  was  overlooked  by  the  New  York  court. 

As  to  the  concession  that,  by  the  laws  of  Massachusetts,  the 
courts  of  that  state  had  jurisdiction  to  attach  the  debt  there  in 
question,  the  learned  chief-judge  makes  this  answer:  "But  it  is 
only  jurisdiction  in  an  international  sense,  or  according  to  the 
course  of  common  law,  and  judicial  proceedings  which  conform 
to,  or,  rather,  which  are  not  taken  in  disregard  of  the  principles 
and  rules  of  general  jurisprudence  which  this  state  is  bound  to 
recognize,  and  if  the  laws  of  Massachusetts  go  to  the  extent 
claimed,  and  assume  to  authorize  attachment  proceedings  to  seize 
a  credit  owing  to  a  resident  of  this  state,  when  neither  the  debtor 
nor  creditor  are  within  the  jurisdiction,  this  state  is  not,  we 
think,  bound  to  recognize  them.  The  law  of  a  state  cannot  make 
a  debtor  a  resident  of  that  state  by  so  declaring,  contrary  to  the 
fact  and  the  rule  of  general  law,  at  least  so  as  to  bind  another 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  443 

jurisdiction  by  the  declaration."  To  which  I  answer,  why  not 
the  same  power  to  make  a  debtor  a  resident  of  the  state  as  to 
arbitrarily  change  the  situs  of  the  debt  from  the  domicile  of  the 
creditor  to  that  of  the  debtor?  And  yet  this  is  precisely  what 
was  done  by  the  New  York  court. 

But  if  the  proposition  stated  in  the  last-quoted  sentence  be 
admitted  to  be  sound,  it  does  not  meet  the  case  in  hand,  for  the 
legislation  under  review  not  only  provides  that  the  foreign  cor- 
poration shall  be,  pro  hac  vice,  a  resident  of  the  state  where  it  is 
doing  business,  but  it  provides  for  the  solemn  consent  of  the 
foreign  corporation  thereto,  and  if  the  foreign  corporation  does, 
in  fact,  consent  thereto,  as  it  has  done  in  this  case,  wherein  does 
the  result  infringe  upon  any  fundamental  law  of  justice?  Why 
should  not  a  corporation  have,  pro  hac  vice,  two  or  more  domi- 
ciles, or,  rather,  business  residences? 

It  is  not  necessary  to  consider  whether  or  not  the  state  creat- 
ing the  corporation  might  not,  by  statutory  limitation,  forming 
part  of  its  corporate  existence,  prevent  its  acquiring  a  domicile 
elsewhere,  since  no  such  original  limitation  was  present  in  the 
New  York  case  or  is  present  in  the  case  now  in  hand ;  and,  as  be- 
fore observed,  the  fact  that  these  corporations  do  have  this  sort  of 
multiple  domicile  is  well  known,  and  was  presumably  known 
by  Douglass,  the  plaintiff  in  the  New  York  case,  when  he  took 
out  his  policy  in  the  defendant  company  therein.  What  injus- 
tice, then,  I  repeat,  was  inflicted  upon  Mr.  Douglass  in  having 
his  debt  applied,  against  his  will,  to  the  payment  of  a  just  debt 
due  by  him?  And  what  sort  of  justice  is  that  which  would 
compel  the  payment  by  the  defendant  of  its  debt  to  Douglass 
first,  to  a  creditor  in  Massachusetts  for  Douglass'  benefit,  and, 
second,  the  payment  of  the  same  debt  to  Mr.  Douglass  in  person, 
so  that  he  (Douglass)  would  have  the  money  in  his  pocket  and 
at  the  same  time  have  his  debt  paid?  The  injustice  of  that  result 
was  strongly  set  forth  by  Chief-Justice  Kent,  in  Embree  v. 
Hanna,  supra.  He  there  assumes  that  the  court  will  never  sub- 
ject a  party  to  the  risk  of  paying  his  debt  twice,  and  such  is  the 
universal  rule  pervading  all  the  cases  on  this  subject,  and  it  seems 


444  PRIVATE   INTERNATIONAL   LAW. 

to  me  that  it  did  not  have  proper  weight  with  the  court  in  Doug- 
lass v.  Insurance  Co. 

The  ability  of  natural  persons  to  have  a  domicile  of  actual 
residence  in  one  state  and  a  g/iayj-domicile  or  residence,  for  busi- 
ness purposes,  in  another  state,  has  already  been  alluded  to.  Not 
only  are  there  thousands  of  natural  persons  who  are  residents  of 
New  Jersey  yet  have  their  entire  business  residence  and  actual 
presence  in  the  cities  of  New  York  and  Philadelphia,  but  there  are 
hundreds  of  corporations  organized  under  the  laws  of  this  state, 
and  recognized  as  corporations  domiciled  in  this  state,  whose 
places  of  business  and  business  plant  are  in  our  neighboring  states. 
Now,  I  think,  the  courts  of  New  York,  notwithstanding  the  deci- 
sion just  referred  to,  will  hesitate  before  applying  these  doctrines 
to  such  persons  and  corporations. 

But  I  return  to  the  question  above  put,  and  I  assert  that  there 
is  no  difficulty  in  holding  that  a  corporation  may  have  two  domi- 
ciles, at  least  for  purposes  of  suit.     Die.  Dom.  pp.  no,  112. 

In  Carron  Iron  Co.  v.  Maclaren,  5  H.  L.  Cas.  416,  Lord  St. 
Leonards  (at  p.  440)  says:  "I  think  that  this  company  may 
properly  be  deemed  both  Scotch  and  English.  It  may,  for  the 
purposes  of  jurisdiction,  be  deemed  to  have  two  domiciles.  Its 
business  is  necessarily  carried  on  by  agents,  and  I  do  not  know 
why  its  domicile  should  be  considered  to  be  confined  to  the  place 
where  the  goods  are  manufactured.  The  business  transacted  in 
England  is  very  extensive.  The  places  of  business  may,  for  the 
purposes  of  jurisdiction,  properly  be  deemed  the  domicile.  The 
corporation  cannot  have  the  benefit  of  its  place  of  business  here 
without  yielding  to  the  persons  zvith  whom  it  deals  a  correspond- 
ing advantage."  And,  again  (at  p.  450)  :  "There  may  be  two 
domiciles  and  two  jurisdictions;  and  in  this  case  there  are,  as  I 
conceive,  two  domiciles  and  a  double  sort  of  jurisdiction — one  in 
Scotland  and  one  in  England — and,  for  the  purpose  of  carrying 
on  their  business,  one  is  just  as  much  the  domicile  of  the  corpora- 
tion as  the  other." 

This  language  was  cited  with  approval  by  Mr.  Justice  (after- 
ward Lord)  Blackburn,  in  a  considered  judgment,  speaking  for 
himself,  Chief-Justice  Cockburn  and  Justices  Mellor  and  Quain, 


ATTACHMENT   AND   SITUS   OF   A   DEBT.  445 

in  Newby  v.  Colt  Co.,  L.  R.,  7  Q.  B.  293,  295  (1871) ;  and  the 
court  in  that  case  held  that  the  Colt  company,  though  created 
by  legislation  of  one  of  the  United  States,  had  a  residence  in 
England,  and  was  liable  to  be  sued  by  ordinary  process  there,  be- 
cause it  had  a  place  of  business  and  was  carrying  on  business 
there.  Now,  if  that  be  so,  does  it  not  follow  inevitably  that  it 
was  liable  to  proceedings  in  garnishment,  if  any  such  there  be, 
in  England,  by  reason  of  debts  owing  by  it  to  a  non-resident  of 
England  against  whom  process  by  foreign  attachment  may  issue  ? 

And  see  Haggin  v.  Comptoir  d'Escompte  de  Paris,  23  Q.  B. 
Div.  519. 

This  capacity  of  a  corporation  to  have  a  multiple  residence 
for  the  purposes  of  suit  has  been  recognized  by  the  courts  of  our 
own  state.  In  Moult  on  v.  Insurance  Co.,  4  Zab.  222  (at  p.  233), 
this  language  was  used  by  Judge  Elmer:  "By  the  comity  univer- 
sally acknowledged  in  the  states  of  this  union,  and  acted  upon 
by  the  supreme  court  in  the  case  of  Bank  of  Augusta  v.  Earl,  13 
Pet.  519,  corporations  may  send  their  officers  and  agents  into 
other  states,  transact  their  business  and  make  contracts  there ; 
and  in  some  instances  the  laws  of  the  states  prescribe  the  mode 
and  the  terms  upon  which  they  may  do  so.  /  am  not  prepared 
to  say,  that  if  they  choose  to  avail  themselves  of  this  privilege, 
natural  justice  zvill  be  violated  by  subjecting  their  officers  and 
agents  to  the  service  of  process  on  behalf  of  the  corporation  they 
represent;  on  the  contrary,  I  think  natural  justice  requires  that 
they  shall  be  subject  to  the  action  of  the  courts  of  the  states  whose 
comity  they  thus  invoke.  For  the  purpose  of  being  sued,  they 
ought  in  such  cases  to  be  regarded  as  voluntarily  placing  them- 
selves in  the  situation  of  citizens  of  that  state.  Any  natural  per- 
son who  goes  into  another  state  carries  along  with  him  all  his  per- 
sonal liabilities,  and  there  is  quite  as  much  reason  that  a  corpora- 
tion which  chooses  to  open  an  office  and  transact  its  business,  or  to 
authorize  contracts  to  be  made  in  another  state,  should  be  re- 
garded as  thereby  voluntarily  submitting  itself  to  the  action  of 
the  laws  of  that  state,  as  well  in  reference  to  the  mode  of  com- 
mencing suit  against  it,  as  to  the  interpretation  of  the  contracts 
so  made." 


446  PRIVATE    INTERNATIONAL   LAW. 

And  in  Bank  v.  Delaware,  Lackawanna  and  Western  Rail- 
road Co.,  3  Dutch.  206,  it  was  held  that  a  foreign  corporation 
holding  lands  and  doing  business  in  this  state  by  legislative  per- 
mission is  not  liable  to  a  foreign  attachment,  but  can  be  served  by- 
ordinary  process. 

And  in  McGregor,  qui  tain,  v.  Erie  Railway  Co.,  6  Vr.  J15, 
it  was  held  that  the  defendant  should  be  considered  a  corpora- 
tion of  this  state  as  well  as  of  New  York.  The  learned  Judge 
Bedle  (at  p.  118)  says:  "It  is  true  that  the  Erie  Railway  Company 
is  a  foreign  corporation,  yet,  at  the  same  time,  it  is  domestic  to  the 
full  extent  of  the  powers  and  franchises  confirmed  and  invested 
in  it  here  in  New  Jersey.  A  corporation  may  have  a  two-fold  or- 
ganization, and  be,  so  far  as  its  relation  to  our  state  is  concerned, 
both  foreign  and  domestic.  It  may  have  a  corporate  entity  in  each 
state,  yet  in  its  general  character  be  of  a  bi-fold  organization. 
This  doctrine  is  sustained  not  only  upon  principle  but  by  the  fol- 
lowing cases.  *  *  *  "  This  language  applies  to  the  case  in 
hand. 

The  result  of  my  study  of  the  New  York  cases  is  that  I  find 
them  standing  well-nigh  alone  among  the  modern  decided  cases, 
several  of  which  I  have  already  cited.  Their  reasoning  does  not 
convince  me  that  the  assumption  of  power  by  the  Pennsylvania 
court  in  this  case  was  invalid  when  tested  by  the  general  princi- 
ples of  international  law  and  natural  justice. 

It  is  admitted  in  this  case  that  Chambers  was  largely  indebted 
to  Harding,  Whitman  &  Company.  There  is  no  claim  in  the  case 
that  he  did  not  have  notice  of  the  attachment  in  Pennsylvania, 
while  the  contrary  is  proven.  Proof  was  made  to  the  satisfaction 
of  that  court  of  the  debt  due  from  him  to  Harding,  Whitman  & 
Company,  and  they  have,  besides,  sued  in  this  state  and  obtained 
judgment,  after  personal  service  upon  him,  for  the  same  debt.  It 
will  be  no  injustice  to  him  to  apply  this  debt  of  the  complainant 
to  him  toward  the  payment  of  his  indebtedness,  pro  tanto,  to 
Harding,  Whitman  &  Company.  But  it  will  be  a  great  injustice 
to  complainant  to  compel  it  to  pay  this  debt  twice.  That  consid- 
eration would  lead  me  to  decide  in  favor  of  Harding.  Whitman 
&  Company,  even  if  I  were  in  doubt  (which  I  am  not)  as  to  the 


CONTRACTS.  447 

soundness  of  the  rulings  of  the  Pennsylvania  courts. 

I  will  advise  a  decree  that  the  fund  in  court  be  paid  to  Hard- 
ing, Whitman  &  Company,  and  that  they  recover  against  Mr. 
Crandall  accordingly  the  costs  paid  out  of  the  fund  to  the  com- 
plainant, and  also  their  costs  herein;  and  that  Chambers  and 
Crandall  and  all  persons  claiming  under  them  be  perpetually  en- 
joined from  bringing  or  maintaining  any  action  upon  the  policy 
of  insurance  in  question. 


CONTRACTS. 
FISHER  v.  OTIS,  3  WIS.  (PINNEY'S)  78,  (1850). 

APPEAL  from  the  Circuit  Court  for  Racine  County. 

The  case  was  that  Fisher  and  Robinson  filed  their  bill  in 
equity  against  Otis  and  others  to  foreclose  a  mortgage  executed 
by  Otis  and  wife  to  James  S.  Wiggin,  securing  the  payment  of 
a  promissory  note,  given  by  Otis  to  Wiggin,  for  $15,000,  pay- 
able one  year  after  date,  with  interest  after  due  at  the  rate  of 
twelve  per  cent.,  payable  semi-annually  at  the  city  of  Boston, 
Mass.  Wiggin  assigned  the  note  and  mortgage  to  the  complain- 
ants before  the  note  became  due,  but  the  assignment  of  the  note 
and  mortgage  was  made  expressly  "subject,  however,  to  all  the 
rights  of  the  said  Otis  and  his  wife  in  and  to  the  same."  It  was 
agreed  that  Otis  had  paid  on  the  note  and  mortgage  $11,200,  and 
the  complainants  claimed  a  decree  for  the  balance,  computing  in- 
terest as  specified  in  the  note. 

The  defendant  Otis  in  his  answer,  which  was  a  sworn  one, 
denied  that  at  the  time  of  the  execution  of  the  note  he  owed 
Wiggin  $15,000,  and  alleged  that  the  note  and  mortgage  were 
given  to  secure  a  balance  of  account  and  future  advances,  and  in- 
sisted that  the  note  was  usurious  by  the  laws  of  Massachusetts 
where  it  was  to  be  paid,  there  the  highest  lawful  rate  of  interest 
being  six  per  cent. 

The  complainants  claimed  to  be  bona  tide  purchasers  of  the 
note  and  mortgage,  without  notice  of  any  defect  in  or  defense 
against  them,  and  a  question  was  also  made,  whether  there  was 
sufficient  testimony  to  overcome  the  allegations  of  the  answer  of 


448  PRIVATE    INTERNATIONAL   LAW. 

Otis,  stating  that  the  note  and  mortgage  were  given  mainly  for 
future  advances  and  his  account  as  to  the  amount  due  thereon ; 
also  whether  the  burden  of  proof  was  on  the  mortgagor  or  mort- 
gagee in  case  of  a  mortgage  for  future  advances,  to  show  the 
amount  of  such  advances. 

The  court  found  from  the  answer  of  Otis  and  other  proofs, 
that  he  was  indebted  to  Wiggin  for  the  difference  in  the  amount 
of  an  invoice  of  goods  at  Detroit  and  at  Boston,  $811.55,  that 
Wiggin  advanced  to  him  at  Southport,  Wisconsin,  where  the  note 
and  mortgage  were  executed,  $9,000,  and  also  subsequently  the 
further  sum  of  $2,162.73  on  a  letter  of  credit,  and  amounting  in 
all  to  $11,974.28. 

Upon  this  basis  the  circuit  court  made  its  decree,  allowing 
interest  on  the  advances  at  seven  per  cent,  from  the  time  when 
they  were  respectively  made,  which,  after  deducting  the  admitted 
payment,  left  due  the  complainants  $135.77,  for  which  sum  and 
costs  a  decree  of  foreclosure  was  entered,  and  the  complainants 
appealed. 

Hubbell,  J.  The  respondents  contended  that  the  note  and 
mortgage,  being  made  to  draw  interest  at  twelve  per  cent.,  were 
usurious  under  the  laws  of  Massachusetts,  which  allow  of  only 
six  per  cent.  A  sufficient  answer  to  this  objection  might  be  found 
in  the  fact  that  no  interest  was  payable  until  the  money  became 
due.  The  note  was  payable  at  ''one  year  from  date,"  and  was  to 
draw  interest  "after  one  year,  at  the  rate  of  twelve  per  cent,  per 
annum."  If  the  money  had  been  paid  at  the  maturity  of  the  note, 
no  interest  would  have  been  demandable.  The  legal  obligation 
was  to  pay  at  the  end  of  a  year,  and  the  maker  might  have  dis- 
charged his  obligations  without  paying  any  interest.  If  he  neg- 
lected to  pay,  or,  in  other  words,  violated  his  agreement,  the  in- 
terest which  follows  might  properly  be  regarded  as  a  penalty  to 
recover  damages.  4  Peters,  225.  At  all  events,  it  seems  to  me 
to  be  a  solecism  in  law  to  hold  an  instrument  usurious  which  may 
be  legally  discharged  by  the  obligor  agreeably  to  its  terms  with- 
out paying  any  interest  at  all. 

But  waiving  this  consideration,  how  far  is  the  objection  ten- 
able?    The  note  and  mortgage  were  executed  and  delivered  in 


CONTRACTS.  449 

Wisconsin,  where  twelve  per  cent,  interest  was  lawful;  but  the 
money  was  payable  in  Boston. 

By  the  statute  of  Massachusetts,  in  case  the  note  had  been 
sued  in  that  state,  the  defendant  might  have  set  up  usury,  in  a 
special  plea,  and  by  so  doing,  reduced  plaintiff's  recovery,  by  a 
sum  equal  to  three  times  the  excess  above  six  per  cent.  Rev.  Stat. 
Mass.,  ch.  35. 

But  this  statute  expressly  declares  that  no  contract  whereby 
usurious  interest  is  secured  shall  be  thereby  rendered  void.  Id., 
ch.  35,  sec.  2.  The  provision  only  extends  to  a  reduction  of  the 
recovery,  upon  a  plea  filed  for  that  express  purpose. 

In  the  language  of  their  own  courts,  it  "professes  only  to 
regulate  the  remedy  upon  a  usurious  contract.  And  that  remedy 
must  be  applied  in  an  action  in  the  courts  of  Massachusetts.  The 
courts  of  this  state  are  not  bound  by  their  remedial  laws.  The 
remedies  we  enforce  are  those  provided  by  our  own  laws. 

This  is  a  general  principle,  so  universally  acknowledged  as 
scarcely  to  need  the  support  of  authority.  But  there  happens  to 
be  a  case  precisely  in  point : 

In  Gale  v.  Eastman,  7  Met.,  14,  the  supreme  court  of  Massa- 
chusetts refused  to  enforce  the  usury  law  of  New  Hampshire., 
which  is  almost  identical  with  her  own,  upon  a  note  made  in  New 
Hampshire,  and  which  clearly  would  have  been  held  usurious  in 
that  state.  Had  the  statute  vitiated  or  affected  the  contract  it- 
self, the  rule  would  have  been  different. 

It  is  said,  however,  that  this  note  being  made  payable  in  Bos- 
ton, is  to  be  governed  in  its  construction  and  legal  effect,  by  the 
laws  of  the  state  where  it  is  to  be  performed.  The  general  rule 
unquestionably  is,  that  "the  lex  loci  contractus  controls  the  na- 
ture, construction  and  validity  of  the  contract."  2Kent,  4.54. 
And  a  contract,  valid  where  it  is  made,  is  valid  everywhere.  From 
this  rule,  however,  contracts  made  in  one  country,  but  to  be  per- 
formed in  another,  have  very  generally  been  excepted.  And  the 
reason  of  the  exception  is,  that  the  parties  are  supposed  to  intend 
to  be  governed  by  the  laws  of  the  country  where  their  contract  is 
to  be  performed,  or  to  take  effect. 

For  this  reason,  a  note  made  in  Canada,  but  payable  in  Eng- 


450  PRIVATE   INTERNATIONAL  LAW. 

land,  wherein  the  rate  of  interest  was  not  specified,  has  been  held 
to  draw  interest  according  to  the  laws  of  England.  And  so  a 
bond  made  in  England  and  payable  in  Ireland,  in  which  the  rate 
of  interest  was  not  fixed,  was  held  to  bear  Irish  interest.  Cham- 
part  v.  Lord  Ranelagh,  approved  by  Wilmot,  J.,  in  Robinson 
v.  Bland,  2  Burr.,  1084.  And  the  same  principle  has  been  asserted 
in  a  great  variety  of  cases  on  both  sides  of  the  Atlantic.  But  I 
think  the  doctrine  of  construing  all  contracts  by  the  law  of  the 
place  of  performance  has  sometimes  been  carried  too  far;  and 
when  applied  rigidly,  it  defeats  the  very  reason  on  which  the  rule 
is  founded.  This  doctrine  is  derived  from  a  dictum  of  Huberus, 
in  his  celebrated  work  De  Conftictu  Legum — a  work  which  had 
the  great  merit  of  bringing  order  out  of  the  immense  confusion 
prevailing  in  continental  Europe  on  the  subject  of  the  lex  loci;  and 
which  remains  to  this  day  a  high  authority,  both  with  the  civilians 
and  common  law  judges.  2  Kent's  Com.,  454.  But  it  may  be 
well  worth  our  while  to  go  back  and  examine  the  language  of 
Huberus  himself. 

After  laying  down  the  general  and  acknowledged  principle, 
that  contracts  are  to  be  governed  by  the  law  of  the  place  where 
they  are  made — the  lex  loci  contractus — the  learned  author  states 
an  exception  to  the  general  rule  in  these  words : 

"Verum  tamcn  non  ita  praecisa  respiciendus  est  locus  in  quo 
contractus  est  initus,  ut  si  partes  alium  in  contrahendo  locum  re- 
spixerint,  ille  non  potius  sit  consider andus.  Nam  contraxisse 
unus  quisque  in  eo  loco  intellegitur,  in  quo  ut  solveret,  se  obli- 
gavit." 

The  first  portion  of  this  extract  contains  the  principle  and 
the  reason  of  it;  the  latter  part  is  a  mere  dictum,  or  rule  of  con- 
struction. As  I  understand  the  doctrine,  it  is  that  the  place  of 
making  the  contract  is  not  to  be  so  exclusively  regarded,  but  that, 
when  the  contracting  parties  themselves  had  reference  to  an- 
other place,  that  may  be  regarded.  That  is,  the  intention  of  the 
parties  shall  govern  when  it  is  made  manifest.  And  hence,  ;:he 
author  adds,  every  person  is  deemed  to  have  contracted  in  the 
place  where  he  binds  himself  that  his  contract  shall  be  performed. 
Now,  this  is  generally,  but  not  universally  true.     And  the  same 


CONTRACTS.  451 

reason  which  requires  a  contract  to  be  governed  by  the  law  of  the 
place  of  performance,  when  it  is  intended  so  to  be,  shall  require 
it  to  be  governed  by  the  place  where  it  is  made,  when  such  was 
the  design  of  the  parties.  When  the  court  can  see  clearly,  either 
from  the  contract  itself,  or  from  evidence  aliunde,  that  the  parties 
intended  to  have  it  governed  by  the  law  of  the  place  of  its  actual 
execution ;  as,  when,  for  instance,  the  contract  would  be  lawful  at 
that  place,  and  not  lawful  at  the  place  of  performance,  then  clearly 
the  intention  of  the  parties  ought  to  prevail. 

To  adopt  a  different  rule  of  construction  would  defeat  a  con- 
tract made  in  good  faith,  in  the  usual  course  of  trade  and  business. 
Courts  are  bound  so  to  construe  all  contracts,  if  possible,  as  to 
give  them  effect  rather  than  to  defeat  them.  Lord  Hale  quaint- 
ly says,  ''the  judges  ought  to  be  curious  and  subtle  to  invent  rea- 
sons and  means  to  make  acts  effectual,  according  to  the  just  in- 
tent of  the  parties."  2  Lev.,  9.  And  if  the  doctrine  of  Huberus 
required  a  different  mode  of  construction  (which  surely  it  does 
not),  it  would  have  to  give  way  to  the  older  and  better  rule  of 
Coke  :  "Ut  res  magis  valeat  quam  pereat." 

In  this  country,  composed  of  widespread  and  independent 
states,  differing  in  governments  and  laws,  where  multitudes  of 
contracts  daily  spring  up,  diversified  in  their  form  and  purpose, 
and  having  reference  to  subject  matters  as  remote  as  the  persons 
contracting,  it  is  of  vast  importance  that  a  rule  of  construction 
should  be  adopted  which  will  give  efficacy  to  the  intentions  of  the 
parties,  wherever  they  may  make  their  engagements  or  undertake 
to  fulfill  them.  And  if  a  too  rigid  rule  has  prevailed,  or  if  a  mis- 
taken application  has  sometimes  been  made,  of  a  rule  founded  in 
reason,  it  is  well  to  restore  our  decisions  from  the  path  of  mere 
authority,  to  that  of  common  sense  and  justice. 

Though  the  citizens  of  almost  all  the  states  are  connected 
more  or  less  in  business  transactions,  the  laws  regulating  the  in- 
terest of  money  and  the  remedies  under  them  are  exceedingly  di- 
versified. 

Occasions  often  arise  in  which  it  is  desirable  to  have  the  rate 
of  interest  prevailing  in  one  state  secured  by  a  contract  which  is 
to  be  performed  in  another.     Is  there  any  good  reason,  either  in 


452  PRIVATE   INTERNATIONAL   LAW. 

law  or  public  policy,  why  the  intentions  of  the  parties  to  such  a 
contract  should  not  prevail  ?  Why  such  a  contract  should  not  be 
enforced  according  to  its  terms,  clearly  and  definitely  expressed, 
whether  the  suit  be  brought  in  the  place  of  its  execution,  or  in  the 
nominal  place  of  its  performance  ? 

Laws  relating  to  interest  or  usury  cannot  surely  at  this  day 
be  regarded  as  involving  a  question  of  morality.  And  where 
there  is  no  pretense  of  any  attempt  to  evade  the  law  of  the  place 
where  the  contract  is  to  be  performed,  I  see  no  ground  for  re- 
fusing to  enforce  it  in  the  state  where  it  was  made ;  and  if  there, 
everywhere. 

This  principle  has  already  been  enforced  to  this  extent,  by 
the  learned  court  of  a  sister  state,  if  I  understand  rightly  the  case 
of  Depeau  V.Humphreys,  decided  in  the  supreme  court,  Louisiana. 
20  Martin,  1. 

I  have  not  been  able  to  examine  the  reported  case ;  but  Chan- 
cellor Walworth,  of  New  York,  himself  an  authority  of  high 
consideration,  thus  speaks  of  the  decision:  "That  court  came 
to  the  conclusion,  in  which  decision  I  fully  concur,  that  in  a  note 
given  at  New  Orleans,  upon  a  loan  of  money  made  there,  the 
creditor  might  stipulate  for  the  highest  legal  rate  of  conventional 
interest  allowed  by  the  laws  of  Louisiana,  although  the  rate  of 
interest  thus  agreed  to  be  paid  was  higher  than  that  which  could 
be  taken  upon  a  loan  by  the  lazvs  of  the  state  where  such  note 
was  made  payable."  In  other  words,  the  note  was  sued  in  the 
state  where  it  was  made,  and  the  law  of  the  state  where  it  was 
to  be  performed  was  not  allowed  to  prevail. 

But  that  decision  goes  further  than  the  case  now  under  con- 
sideration requires.  It  is  one  thing  to  enforce  a  contract  entirely 
personal  in  its  character,  and  which  may  be  prosecuted  wherever 
the  person  or  property  of  the  obligor  is  found,  and  quite  a  differ- 
ent thing  to  enforce  a  security  upon  land,  which  must  necessarily 
be  prosecuted  in  the  place  where  the  land  is  situated.  The  appel- 
lants are  seeking  to  recover  upon  a  mortgage  executed  in  Wis- 
consin, upon  lands  in  Wisconsin,  and  made  in  conformity  to  the 
laws  of  Wisconsin. 

It  may  be  well  supposed  that  the  parties  intended  to  contract 


CONTRACTS.  453 

under  the  laws  of  Wisconsin,  and  to  seek  their  redress  under 
those  laws,  although  the  money  secured  was  made  payable  in  an- 
other state.  On  the  continent  of  Europe  the  distinction  has  long 
prevailed,  between  what  is  termed  personal  and  real  statutes. 
''The  laws  which  regulate  the  condition,  capacity  or  incapacity  of 
persons  are  personal  statutes ;  and  those  which  regulate  the  qual- 
ity, transmission  and  disposition  of  property  are  real  statutes." 
2  Kent's  Com.,  456. 

This  distinction  was  asserted  as  a  rule  of  judicial  action,  by 
Chancellor  Walworth,  in  the  case  of  Chapman  v.  Robinson,  6 
Paige,  627.  That  was  a  loan  of  money  made  in  England,  upon 
the  security  of  a  bond  and  mortgage  executed  in  New  York,  upon 
lands  in  that  state,  but  delivered  in  England  and  payable  there, 
where  the  money  was  in  fact  placed  to  the  credit  of  the  borrower. 
The  rate  of  interest  was  seven  per  cent,  per  annum,  a  rate  legal 
in  New  York,  but  usurious  in  England. 

Upon  a  bill  filed  to  foreclose  the  mortgage,  and  the  defense 
of  usury  set  up,  the  Chancellor  held  the  mortgage  valid,  and  de- 
creed its  payment,  with  seven  per  cent,  interest.  In  the  course 
of  a  learned  and  able  discussion  of  the  subject,  he  remarks : 

"It  is  an  established  principle,  that  the  construction  and  val- 
idity of  contracts,  which  are  purely  personal,  depend  upon  the 
laws  of  the  place  where  the  contract  is  made,  unless  it  was  made 
in  reference  to  the  laws  of  some  other  place  or  country,  where 
such  contract,  in  the  contemplation  of  the  parties  thereto,  was  to 
be  carried  into  effect  or  performed."  2  Kent's  Com.,  457 ;  Story's 
Conf.  of  Laws,  227,  sec.  272. 

On  the  other  hand,  it  appears  to  be  equally  well  settled  by  the 
laws  of  every  state  or  country,  that  the  transfer  of  lands  or  other 
heritable  property,  or  the  creation  of  any  interest  in,  or  lien  or  in- 
cumbrance thereon,  must  be  made  according  to  the  lex  situs,  or 
the  local  law  of  the  place  where  the  property  is  situated."  And 
after  discussing  at  length  the  effect  of  making  the  money  payable 
in  England,  and  the  views  of  Mr.  Justice  Story  and  Chancellor 
Kent  upon  kindred  cases,  he  says:  "But  neither  he  nor  Chan- 
cellor Kent  appear  to  have  expressed  any  opinion  upon  the  pre- 
cise question  presented  in  the  present  case,  in  which  the  rate  of 


454  PRIVATE   INTERNATIONAL   LAW. 

interest  reserved  is  allowed  by  the  latv  of  the  place  where  the 
mortgaged  premises  are  situated,  and  ivhere  the  bond  and  mort- 
gage were  actually  executed,  but  is  more  than  could  be  legally 
reserved  by  the  law  of  the  place  ivhere  the  money  was  received, 
and  where,  by  the  legal  construction  of  the  contract,  it  must  be 
deemed  to  be  payable.  Upon  a  full  examination  of  all  the  cases 
to  be  found  upon  the  subject,  in  this  country  or  in  England,  none 
of  which,  however,  appear  to  have  decided  the  precise  question 
which  arises  in  this  cause,  I  have  arrived  at  the  conclusion  that 
this  mortgage  executed  here,  and  upon  property  in  this  state,  be- 
ing valid  by  the  lex  situs,  and  which  is  also  the  law  of  the  domi- 
cil  of  the  mortgagor,  it  is  the  duty  of  this  court  to  give  full  effect 
to  the  security,  without  reference  to  the  usury  laws  of  England, 
which  neither  party  intended  to  evade  or  violate  by  the  execution 
of  a  mortgage  here." 

And  again,  he  says:  "And  being  actually  made  in  reference 
to  our  laws,  and  to  the  rate  of  interest  allowed  here,  it  must  be 
governed  by  them,  in  the  construction  and  effect  of  the  contract, 
as  to  its  validity.  See  also  7  Paige,  632.  I  am  aware  that  these 
views  have  received  reproof  in  a  high  quarter  ( Story  on  Conf .  of 
Laws,  sec.  293  c.  and  note),  but  I  think,  more  in  deference  to  au- 
thority than  reason. 

But  the  case  of  Chapman  v.  Robinson,  both  in  fact  and  in 
reason,  runs  parallel  with  that  under  consideration;  and  the  de- 
cision in  the  one  must  be  held  conclusive  in  the  other.  It  seems 
to  me  that  the  learned  court  of  New  York  has  rescued  a  sound 
principle  from  the  conflict  of  authorities,  and  made  an  application 
of  it,  which,  however  novel  or  unprecedented,  must  stand  the  test 
of  time  and  scrutiny.  To  have  decided  differently  would  have 
defeated  the  intention  of  the  parties  and  rendered  nugatory  a  con- 
tract, entered  into  in  good  faith  and  agreeably  to  the  laws  of  the 
great  and  commercial  state  where  it  was  executed.  And  upon 
this  ground,  if  there  were  no  other  defense  to  the  mortgage  of 
Otis,  this  court  would  be  bound  to  decree  its  full  payment,  with 
12  per  cent,  interest,  according  to  its  terms  and  in  conformity  to 
the  laws  of  Wisconsin,  without  reference  to  the  usury  laws  of 
Massachusetts,  which  there  was  no  intention  to  evade  or  violate. 


CONTRACTS.  455 

The  note  and  mortgage,  however,  as  I  have  before  stated, 
were  given  not  for  an  actual  debt  of  fifteen  thousand  dollars,  but 
to  secure  a  less  sum,  partly  advanced  prior  to  their  execution,  and 
partly  to  be  advanced  afterwards.  What  interest  was  to  be  paid, 
if  any,  upon  the  sum  actually  secured,  is  a  matter  of  inference  or 
conjecture.  Though  the  members  of  this  court  agree  in  the  opin- 
ion that  interest,  at  some  rate,  ought  to  be  allowed,  they  do  not 
concur  in  the  rule  to  be  applied.  As  no  rate  was  specified,  and 
as  the  money  was  to  be  paid  in  Boston,  it  is  urged  that  six  per 
cent.,  the  legal  rate  of  interest  in  Massachusetts,  should  govern. 
Again,  as  the  action  is  brought  in  this  state,  and  this  is  the  situs  of 
the  property  to  be  made  available  as  a  security ;  as  this  is  the  domi- 
cile of  the  mortgagor,  and  as  the  court  holds  the  parties  to  have 
had  reference  to  the  laws  of  this  state  in  making  their  contract, 
it  is  urged  that  seven  per  cent.,  the  legal  rate  of  interest  in  Wis- 
consin, should  prevail.  So  the  court  below  determined.  Again, 
it  is  urged  that  the  parties  themselves  having  agreed  upon  twelve 
per  cent.,  as  the  rate  of  interest,  in  case  the  entire  fifteen  thou- 
sand dollars  had  been  advanced,  they  must  be  deemed  to  have  in- 
tended that  rate  of  interest  to  be  charged  upon  any  less  sum  ad- 
vanced. 

It  becomes  unnecessary,  however,  for  the  court  to  make  any 
decision  upon  this  mooted  question.  By  a  stipulation  entered  into 
between  the  parties  on  the  ninth  of  May,  1849,  the  respondent  has 
paid  the  sum  of  eleven  thousand  and  two  hundred  dollars ;  and  the 
decree  of  the  circuit  court,  from  which  the  present  appeal  is 
brought,  directs  the  payment  to  the  appellants  of  a  further  sum  of 
$! 3577— making  in  all  $n,335-77- 

After  a  full  and  careful  examination  of  the  pleadings  and 
testimony,  we  are  none  of  us  able  to  discover  that  James  S.  Wig- 
gin,  the  mortgagee,  had  paid  or  advanced  to  or  for  the  mortgagor, 
any  sum  or  sums  which,  with  interest  at  twelve  per  cent,  from  the 
date  of  payment,  would  amount  to  $11,200  on  the  ninth  of  May, 
1849.  -^nd  if  the  case  were  now  open  for  an  original  decree  on 
the  merits,  this  court  would  be  compelled  to  find  a  less  sum  due 
than  was  found  by  the  court  below.  It  is  not  necessary,  there- 
fore, to  decide  what  rate  of  interest  ought  to  govern,  nor  need  we 


456  PRIVATE    INTERNATIONAL   LAW. 

enter  into  a  detail  of  the  facts  from  which  we  draw  our  conclusion, 
as  to  the  actual  amount  due  from  Otis  to  Wiggin. 

It  is  sufficient  that  it  has  been  already  paid  or  decreed  to  be 
paid ;  and  the  appellants  have  no  further  rights  in  the  premises. 

Decree  of  the  court  below  affirmed,  with  costs. 


MILLER  v.  WILSON,  146  ILL.  523,  (1893). 

Appeal  from  the  Appellate  Court  for  the  Second  District. 

This  was  an  action  of  assumpsit,  brought  by  Matthew  M. 
Miller,  against  Robert  R.  Wilson,  to  recover  a  balance  due  on  the 
purchase  price  of  certain  lots  in  Clay  Center,  Kansas,  under  an 
alleged  contract  of  sale  made  by  Miller  to  Wilson. 

On  a  trial  of  the  cause  before  a  jury  the  plaintiff  recovered 
a  judgment  for  the  amount  claimed.  The  defendant  appealed  to 
the  Appellate  Court,  where  the  judgment  was  reversed. 

Mr.  Justice  Craig  delivered  the  opinion  of  the  Court : 

Conceding  the  facts  to  be  as  found  by  the  Appellate  Court 
and  recited  in  its  judgment,  the  question  is  whether  the  judgment 
rendered  by  that  court  is  one  authorized  by  the  facts.  The  con- 
tract sued  upon  was  executed  in  Kansas.  It  related  to  lands  in 
Kansas,  and  the  Appellate  Court  reversed  the  judgment  rendeied 
in  the  circuit  court  on  the  contract,  on  the  ground  that  there  was 
no  memorandum  signed  in  writing  by  the  defendant,  and  the  con- 
tract was  within  the  Statute  of  Frauds  of  this  State,  and  hence 
an  action  could  not  be  enforced  upon  it.  It  will  be  observed  that 
the  Statute  of  Frauds  of  Kansas,  where  the  contract  was  executed 
and  where  the  property  sold  was  located,  was  not  pleaded,  but  the 
plea  of  the  defendant  set  up  the  Statute  of  Frauds  of  this  State. 
It  will  also  be  observed  that  the  record  contains  no  evidence  what- 
ever that  the  State  of  Kansas  has  enacted  a  Statute  of  Frauds,  or 
that  there  is  any  law  in  that  State  requiring  a  contract  relating 
to  the  sale  of  lands  to  be  in  writing.  If,  therefore,  the  contract 
in  question  was  valid  in  Kansas,  (and  it  must  be  so  held  in  the  ab- 
sence of  a  law  in  that  State  to  the  contrary,)  and  is  to  be  controlled 
by  the  laws  of  that  State  as  to  its  validity,  then  the  judgment  of 
the  Appellate  Court  was  erroneous.     On  the   other  hand,  if   the 


CONTRACTS.  457 

contract  is  to  be  governed  by  the  laws  of  this  State,  where  the  ac- 
tion was  brought  upon  it,  then  the  decision  of  the  Appellate  Court 
was  correct.  The  question,  therefore,  to  be  determined  is, 
whether  the  lex  loci  contractus  is  to  control,  or  whether  the  con- 
tract shall  be  governed  by  the  lex  fori. 

As  a  general  rule,  a  contract  valid  in  the  State  where  it  is  exe- 
cuted may  be  enforced  in  another  State.  Thus,  in  Roundtree  v. 
Baker,  52  111.  241,  this  court  held,  where  an  instrument  executed  in 
the  State  of  Kentucky,  prior  to  the  abolition  of  slavery,  for  the  pur- 
chase price  of  a  negro  slave  sold  there,  was  sued  upon  in  this  State, 
that  the  contract,  being  valid  and  enforcible  where  it  was  made, 
will  be  enforced  in  our  courts  under  the  law  of  comity,  notwith- 
standing such  a  contract  could  not  have  originated  here,  by  reason 
of  slavery  being  pronibited  in  this  State.  It  is  there  said :  "It  is 
a  general  rule  that  we  look  to  the  law  of  the  place  where  the  con- 
tract is  entered  into,  and  not  where  it  is  to  be  enforced,  to  ascer- 
tain its  validity.  Not  only  so,  but  in  expounding  its  terms  and  con- 
ditions." Sutherland  on  Statutory  Construction  (sec.  471)  says: 
"The  laws  which  exist  at  the  time  and  place  of  the  making  of  a 
contract  determine  its  validity,  construction,  discharge  and  meas- 
ure of  efficacy  of  its  enforcement.  A  statute  of  frauds  embracing 
a  pre-existing  parol  contract  not  before  required  to  be  in  writing 
would  affect  its  validity." 

It  is  a  familiar  rule  that  the  laws  existing  at  the  time  and 
place  of  the  execution  of  a  contract  enter  into  and  form  a  part 
of  the  contract.  Thus,  in  Edwards  v.  Kearsey,  96  U.  S.  595.  it 
is  said :  "It  is  the  settled  doctrine  of  this  court  that  the  laws  which 
subsist  at  the  time  and  place  of  making  a  contract  enter  into  and 
form  a  part  of  it,  as  if  they  were  expressly  referred  to  or  incor- 
porated in  its  terms.  This  rule  embraces  alike  those  which  affect 
its  validity,  construction,  discharge  and  enforcement." 

A  very  interesting  case  on  this  subject  is  Cochran  v.  Ward, 
29  X.  E.  Rep.  795,  and  as  the  opinion  in  that  case  refers  to  and 
quotes  from  a  number  of  authorities,  we  quote  from  the  language 
of  the  opinion :  "In  the  case  of  Lazv  v.  Andrews,  1  Story,  38,  it 
was  held  that  a  contract  for  the  sale  of  goods  in  France,  if  valid 
there,  would  be  enforced  in  this  country,  though  within  the  Stat- 


458  PRIVATE   INTERNATIONAL,   LAW. 

ute  of  Frauds  here.  In  Scudder  v.  Bank,  91  U.  S.  406,  it  was 
held  that  in  an  action  upon  the  parol  acceptance  of  a  bill  of  ex- 
change to  be  performed  in  Missouri,  the  Statute  of  Frauds  of  the 
place  of  the  contract  should  control,  as  it  affected  the  formality 
necessary  to  create  a  legal  obligation.  The  case  of  King  v.  Fries, 
$$  Mich.  2JJ,  was  an  action  in  Michigan  upon  a  contract  for  the 
sale  of  goods  in  Ohio ;  it  was  held  that  the  Ohio  Statute  of  Frauds 
applied.  The  case  of  Houghtaling  v.  Ball,  19  Mo.  84,  was  an  ac- 
tion in  Missouri  upon  a  contract  for  the  sale  of  wheat  to  be  de- 
livered in  the  State  of  Illinois;  it  was  decided  that  the  Illinois 
Statute  of  Frauds  obtained.  The  case  of  Anderson  v.  May,  10 
Heisk.  84,  was  an  action  in  Tennessee  upon  a  lease  for  lands  in 
Arkansas;  the  court  decided  that  the  Statute  of  Frauds  of  the 
latter  State  should  be  allowed  to  control  the  contract.  Denny  v. 
Williams,  5  Allen,  1,  was  an  action  in  Massachusetts  upon  a  con- 
tract for  the  sale  of  wool  in  New  York,  and  the  defendant  set  up 
the  New  York  Statute  of  Frauds.  The  court  held  the  answer 
good,  saying :  'As  the  contract  was  made  in  the  city  of  New  York, 
and  was  to  be  performed  there,  the  laws  of  the  State  of  Xew 
York  must  govern  us  in  respect  to  its  construction  and  perform- 
ance.' The  Supreme  Court  of  Louisiana,  in  Vidal  v.  Thompson, 
11  Mart.  (La.)  23,  said:  'An  instrument,  as  to  its  form  and  the 
formalities  attending  its  execution,  must  be  tested  by  the  law  of 
the  place  where  it  was  made.'  In  Pickering  v.  Fish,  6  Vt.  102, 
the  court  used  this  language :  'As  to  the  requisites  of  a  valid  con- 
tract, the  mode  of  authentication,  the  forms  and  ceremonies  re- 
quired, and,  in  general,  everything  which  is  necessary  to  perfect 
or  consummate  the  contract,  the  lex  loci  contractus  governs, 
though,  with  respect  to  conveyances,  or  other  contracts  relating 
to  real  estate,  the  statutory  regulations  of  the  place  where  such 
estate  is  situated  must  be  observed.'  " 

As  observed  before,  the  contract  involved  was  executed  in 
Kansas,  related  to  property  in  that  State,  and  was  to  be  performed 
in  Kansas.  Under  the  authorities  cited,  the  laws  of  Kansas  en- 
tered into  and  formed  a  part  of  the  contract,  and  if  the  contract 
was  valid  in  that  State,  although  it  may  be  prohibited  by  our  Stat- 
ute of  Frauds,  our  courts,  under  the  doctrine  of  comity,  in  an  ac- 


CONTRACTS.  459 

tion  on  the  contract,  could  do  no  less  than  enforce  it.  If  the  laws 
of  Kansas  rendered  the  contract  void  or  voidable,  for  the  reason 
that  it  related  to  lands  and  was  not  in  writing,  that  was  a  matter 
the  defendant  was  bound  to  plead  and  prove.  As  was  held  in 
Smith  v.  Whitaker,  23  111.  367,  a  contract  made  in  another  State 
or  in  a  foreign  country  will  be  presumed  to  be  made  in  accordance 
with  the  laws  of  the  place  of  its  execution,  and  a  violation  of  those 
laws,  if  relied  on  as  a  defense,  must  be  pleaded  and  proved.  Here 
the  defendant  interposed  a  plea  of  the  Statute  of  Frauds,  but  did 
not  set  up  that  it  was  the  law  of  or  a  statute  in  Kansas.  In  the 
absence  of  an  averment  that  the  statute  was  one  of  another  State, 
we  will  presume  it  was  the  statute  of  our  own  State.  But  if  the 
defendant  had  pleaded  the  statute  of  Kansas  he  would  occupy  no 
better  position,  for  the  reason  that  no  proof  whatever  was  intro- 
duced tending  to  show  what  the  statute  or  law  of  Kansas  was. 

From  what  has  been  said,  if  we  are  correct,  our  Statute  of 
Frauds,  relied  upon  by  defendant,  was  no  defense.  The  judg- 
ment of  the  Appellate  Court  will  be  reversed,  and  the  judgment 

of  the  circuit  court  will  be  affirmed. 

Judgment  reversed. 


SCUDDER  v.  UNION  NATIONAL  BANK,  91  U.  S.  406,  (1875). 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

It  is  not  necessary  to  examine  the  question,  whether  a  denial 
of  the  motion  to  set  aside  the  summons  can  be  presented  as  a 
ground  of  error  on  this  hearing.  The  facts  are  so  clearly  against 
the  motion,  that  the  question  does  not  arise. 

Nor  does  it  become  necessary  to  examine  the  question  of 
pleading,  which  is  so  elaborately  spread  out  in  the  record.  The 
only  serious  question  in  the  case  is  presented  upon  the  objection 
to  the  admission  of  evidence  and  to  the  charge  of  the  judge. 

Upon  the  merits,  the  case  is  this :  The  plaintiff  below  sought 
to  recover  from  the  firm  of  Henry  Ames  &  Co.,  of  St.  Louis,  Mo., 
the  amount  of  a  bill  of  exchange,  of  which  the  following  is  a 
copy,  viz. : — 


460  PRIVATE    INTERNATIONAL   LAW. 

"$8,125.00.  "Chicago,  July  7,  1871. 

"Pay  to  the  order  of  Union  National  Bank  eight  thousand  one 
hundred  and  twenty-five  dollars,  value  received,  and  charge  to  ac- 
count of  Leland  &  Harbach. 

"To  Messrs.  Henry  Ames  &  Co.,  St.  Louis,  Mo." 

By  the  direction  of  Ames  &  Co.,  Leland  &  Harbach  had 
bought  for  them,  and  on  the  seventh  day  of  July,  1871,  shipped  to 
them  at  St.  Louis,  500  barrels  of  pork,  and  gave  their  check  on  the 
Union  bank  to  Hancock,  the  seller  of  the  same,  for  $8,000. 

Leland  &  Harbach  then  drew  the  bill  in  question,  and  sent 
the  same  by  their  clerk  to  the  Union  Bank  (the  plaintiff  below) 
to  be  placed  to  their  credit.  The  bank  declined  to  receive  the  bill, 
unless  accompanied  by  the  bill  of  lading  or  other  security.  The 
clerk  returned,  and  reported  accordingly  to  Leland  &  Harbach. 
One  of  the  firm  then  directed  the  clerk  to  return  to  the  bank,  and 
say  that  Mr.  Scudder,  one  of  the  firm  of  Ames  &  Co.  (the  draw- 
ees), was  then  in  Chicago,  and  had  authorized  the  drawing  of  the 
draft;  that  it  was  drawn  against  500  barrels  of  pork  that  day 
bought  by  Leland  &  Harbach  for  them,  and  duly  shipped  to  them. 
The  clerk  returned  to  the  bank,  and  made  this  statement  to  its 
vice-president ;  who  thereupon,  on  the  faith  of  the  statement  that 
the  bill  was  authorized  by  the  defendants,  discounted  the  same, 
and  the  proceeds  were  placed  to  the  credit  of  Leland  &  Harbach. 
Out  of  the  proceeds  the  check  given  to  Hancock  for  the  pork  was 
paid  by  the  bank. 

The  direction  to  inform  the  bank  that  Mr.  Scudder  was  in 
Chicago  and  had  authorized  the  drawing  of  the  draft  was  made 
in  the  presence  and  in  the  hearing  of  Scudder,  and  without  objec- 
tion by  him. 

The  point  was  raised  in  various  forms  upon  the  admission  of 
evidence,  and  by  the  charge  of  the  judge,  whether,  upon  this 
state  of  facts,  the  firm  of  Ames  &  Co.,  the  defendants,  were  liable 
to  the  bank  for  the  amount  of  the  bill.  The  jury,  under  the 
charge  of  the  judge,  held  them  to  be  liable;  and  it  is  from  the 
judgment  entered  upon  that  verdict  that  the  present  writ  of  error 
is  brought. 


CONTRACTS.  461 

The  question  is  discussed  in  the  appellant's  brief,  and  prop- 
erly, as  if  the  direction  to  the  clerk  had  been  given  by  Scudder  in 
person.  The  jury  were  authorized  to  consider  the  direction  in  his 
name,  in  his  presence  and  hearing,  without  objection  by  him,  as 
made  by  himself. 

The  objection  relied  on  is,  that  the  transaction  amounted  at 
most  to  a  parol  promise  to  accept  a  bill  of  exchange  then  in  ex- 
istence. It  is  insisted  that  such  a  promise  does  not  bind  the  de- 
fendants. 

The  suit  to  recover  upon  the  alleged  acceptance,  or  upon  the 
refusal  to  accept,  being  in  the  State  of  Illinois,  and  the  contract 
having  been  made  in  that  State,  the  judgment  is  to  be  given  ac- 
cording to  the  law  of  that  State.  The  law  of  the  expected  place 
of  performance,  should  there  be  a  difference,  yields  to  the  lex  fori 
and  the  lex  loci  contractus. 

In  Wheaton  on  Conflict  of  Laws,  sect.  401  p,  the  rule  is  thus 
laid  down : — 

"Obligations,  in  respect  to  the  mode  of  their  solemnization, 
are  subject  to  the  rule  locus  regit  actum;  in  respect  to  their  inter- 
pretation, to  the  lex  loci  contractus ;  in  respect  to  the  mode  of 
their  performance,  to  the  law  of  the  place  of  their  performance. 
But  the  lex  fori  determines  when  and  how  such  laws,  when  for- 
eign, are  to  be  adopted,  and,  in  all  cases  not  specified  above,  sup- 
plies the  applicatory  law." 

Miller  v.  Tiffany,  1  Wall.  310;  Chapman  v.  Robertson,  6 
Paige,  634;  Andrczvs  v.  Pond,  13  Pet.  78;  Lamesse  v.  Baker,  3 
Wheat.  147;  Adams  v.  Robertson,  37  111.  59;  Ferguson  v.  Fuffe, 
8  C.  &  F.  121 ;  Bain  v.  Whitehaven  and  Fumess  Junction  Ry. 
Co.,  3  H.  L.  Cas.  1;  Scott  v.  Pilkinton,  15  Abb.  Pr.  280;  Story, 
Confl.  Laws,  203  ;  10  Wheat.  383. 

The  rule  is  often  laid  down,  that  the  law  of  the  place  of  per- 
formance governs  the  contract. 

Mr.  Parsons,  in  his  "Treatise  on  Notes  and  Bills,"  uses  this 
language :  "If  a  note  or  bill  be  made  payable  in  a  particular  place, 
it  is  to  be  treated  as  if  made  there,  without  reference  to  the  place 
at  which  it  is  written  or  signed  or  dated."     P.  324. 

For  the  purposes  of  payment,  and  the  incidents  of  payment, 


462  PRIVATE    INTERNATIONAL   LAW. 

this  is  a  sound  proposition.  Thus  the  bill  in  question  is  directed 
to  parties  residing  in  St.  Louis,  Mo.,  and  contains  no  statement 
whether  it  is  payable  on  time  or  at  sight.  It  is,  in  law,  a  sight 
draft.  Whether  a  sight  draft  is  payable  immediately  upon  pre- 
sentation, or  whether  days  of  grace  are  allowed,  and  to  what  ex- 
tent, is  differently  held  in  different  States.  The  law  of  Missouri, 
where  this  draft  is  payable,  determines  that  question  in  the  pres- 
ent instance. 

The  time,  manner,  and  circumstances  of  presentation  for  ac- 
ceptance or  protest,  the  rate  of  interest  when  this  is  not  specified 
in  the  bill  (Young  v.  Harris,  14  B.  Mon.  556;  Parry  v.  Ains- 
zvorth,  22  Barb.  118),  are  points  connected  with  the  payment  of 
the  bill;  and  are  also  instances  to  illustrate  the  meaning  of  the 
rule,  that  the  place  of  performance  governs  the  bill. 

The  same  author,  however,  lays  down  the  rule,  that  the  place 
of  making  the  contract  governs  as  to  the  formalities  necessary 
to  the  validity  of  the  contract.  P.  317.  Thus,  whether  a  con- 
tract shall  be  in  writing,  or  may  be  made  by  parol,  is  a  formality 
to  be  determined  by  the  law  of  the  place  where  it  is  made.  If 
valid  there,  the  contract  is  binding,  although  the  law  of  the  place 
of  performance  may  require  the  contract  to  be  in  writing.  Da- 
cost  a  v.  Hatch,  4  Zab.  319. 

So  when  a  note  was  indorsed  in  New  York,  although  drawn 
and  made  payable  in  France,  the  indorsee  may  recover  against 
the  payee  and  indorser  upon  a  failure  to  accept,  although  by  rhe 
laws  of  France  such  suit  cannot  be  maintained  until  after  default 
in  payment.     Aymar  v.  Shelden,  12  Wend.  439. 

So  if  a  note,  payable  in  New  York,  be  given  in  the  State  of 
Illinois  for  money  there  lent,  reserving  ten  per  cent  interest, 
which  is  legal  in  that  State,  the  note  is  valid,  although  but  seven 
per  cent  interest  is  allowed  by  the  laws  of  the  former  State. 
Miller  v.  Tiffany,  1  Wall.  310;  Depeau  v.  Humphry,  20  How.  1  ; 
Chapman  v.  Robertson,  6  Paige,  634;  Andreu's  v.  Pond,  13 
Pet.  65. 

Matters  bearing  upon  the  execution,  the  interpretation,  and 
the  validity  of  a  contract  are  determined  by  the  law  of  the  place 
where  the  contract  is  made.     Matters  connected  with  its  perform- 


CONTRACTS.  463 

ance  are  regulated  by  the  law  prevailing  at  the  place  of  perform- 
ance. Matters  respecting  the  remedy,  such  as  the  bringing  of 
suits,  admissibility  of  evidence,  statutes  of  limitation,  depend  upon 
the  law  of  the  place  where  the  suit  is  brought. 

A  careful  examination  of  the  well-considered  decisions  of 
this  country  and  of  England  will  sustain  these  positions. 

There  is  no  statute  of  the  State  of  Illinois  that  requires  an 
acceptance  of  a  bill  of  exchange  to  be  in  writing,  or  that  prohibits 
a  parol  promise  to  accept  a  bill  of  exchange:  on  the  contrary,  a 
parol  acceptance  and  a  parol  promise  to  accept  are  valid  in  that 
State,  and  the  decisions  of  its  highest  court  hold  that  a  parol  prom- 
ise to  accept  a  bill  is  an  acceptance  thereof.  If  this  be  so,  no  ques- 
tion of  jurisdiction  or  of  conflict  of  laws  arises.  The  contract  to 
accept  was  not  only  made  in  Illinois,  but  the  bill  was  then  and 
there  actually  accepted  in  Illinois,  as  perfectly  as  if  Mr.  Scudder 
had  written  an  acceptance  across  its  face,  and  signed  thereto  the 
name  of  his  firm.  The  contract  to  accept  the  bill  was  not  to  be 
performed  in  Missouri.  It  had  already,  by  the  promise,  been  per- 
formed in  Illinois.  The  contract  to  pay  was,  indeed,  to  be  per- 
formed in  Missouri ;  but  that  was  a  different  contract  from  that 
of  acceptance.  Nelson  v.  First  Nat.  Bank,  48  111.  39 ;  Mason  v. 
Donsay,  35  id.  424;  Jones  v.  Bank,  34  id.  319. 

Unless  forbidden  by  statute,  it  is  the  rule  of  law  generally, 
that  a  promise  to  accept  an  existing  bill  is  an  acceptance  thereof, 
whether  the  promise  be  in  writing  or  by  parol.  Wynne  v.  Raikes, 
5  East,  514;  Bank  of  Ireland  v.  Archer,  11  M.  &  W.  383 ;  How  v. 
Lonng,  24  Pick.  254 ;  Ward  v.  Allen,  2  Met.  53 ;  Bank  v.  Wood- 
ruff, 34  Xt.  92;  Spalding  v.  Andrcivs,  12  Wright,  411 ;  Williams 
v.  Winans,  2  Green  (N.  J.),  309;  Storer  v.  Logan,  9  Mass.  56; 
Byles  on  Bills,  sect.  149;  Barney  v.  Withington,  37  N.  Y.  112. 
See  the  Illinois  cases  cited,  supra. 

Says  Lord  Ellenborough,  in  the  first  of  these  cases,  "A  prom- 
ise to  accept  an  existing  bill  is  an  acceptance.  A  promise  to  pay 
it  is  also  an  acceptance.  A  promise,  therefore,  to  do  the  one  or 
the  other, — i.  e.,  to  accept  or  certainly  pay, — cannot  be  less  than 
an  acceptance." 

In  Williams  v.  Winans,  Hornblower,  C.  J.,  says,  "The  first 


464  PRIVATE    INTERNATIONAL   LAW. 

question  is,  whether  a  parol  acceptance  of  a  bill  will  bind  the  ac- 
ceptor; and  of  this  there  is  at  this  day  no  room  to  doubt.  The 
defendant  was  informed  of  the  sale,  and  that  his  son  had  drawn 
an  order  on  him  for  $125 ;  to  which  he  answered,  it  was  all  right. 
He  afterwards  found  the  interest  partly  paid,  and  the  evidence 
of  payment  indorsed  upon  it  in  the  handwriting  of  the  defendant. 
These  circumstances  were  proper  and  legal  evidence  from  which 
the  jury  might  infer  an  acceptance." 

It  is  a  sound  principle  of  morality,  which  is  sustained  by 
well-considered  decisions,  that  one  who  promises  another,  either 
in  writing  or  by  parol,  that  he  will  accept  a  particular  bill  of  ex- 
change, and  thereby  induces  him  to  advance  his  money  upon  such 
bill,  in  reliance  upon  his  promise,  shall  be  held  to  make  good  his 
promise.  The  party  advances  his  money  upon  an  original  prom- 
ise, upon  a  valuable  consideration ;  and  the  promisor  is,  upon  prin- 
ciple, bound  to  carry  out  his  undertaking.  Whether  it  shall  be 
held  to  be  an  acceptance,  or  whether  he  shall  be  subjected  in  dam- 
ages for  a  breach  of  his  promise  to  accept,  or  whether  he  shall 
be  held  to  be  estopped  from  impeaching  his  word,  is  a  matter  of 
form  merely.  The  result  in  either  event  is  to  compel  the  prom- 
isor to  pay  the  amount  of  the  bill  with  interest.  Townley  v. 
Sumdel,  2  Pet.  170;  Boyce  v.  Edwards,  4  id.  in;  Goodrich  v. 
Gordon,  15  Johns.  6;  Scott  v.  Pilkinton,  15  Abb.  Pr.  280;  Ontario 
Bank  v.  Worthington,  12  Wend.  593 ;  Bissell  v.  Lewis,  4  Mich. 
450 ;  Williams  v.  IVinans,  supra. 

These  principles  settle  the  present  case  against  the  appellants. 

It  certainly  does  not  aid  their  case,  that  after  assuring  the 
bank,  through  the  message  of  Leland  &  Harbach,  that  the  draft 
was  drawn  against  produce  that  day  shipped  to  the  drawees, 
and  that  it  was  drawn  by  the  authority  of  the  firm  (while,  in  fact, 
the  produce  was  shipped  to  and  received  and  sold  by  them),  and 
that  the  bank  in  reliance  upon  this  assurance  discounted  the  bill, 
Mr.  Scudder  should  at  once  have  telegraphed  his  firm  in  St.  Louis 
to  delay  payment  of  the  draft,  and,  by  a  subsequent  telegram, 
should  have  directed  them  not  to  pay  it.    1 

The  judgment  must  be  affirmed. 


CONTRACTS.  465 

LIVERPOOL  STEAM  CO.  v.  PHENIX  INS.  CO.,  129  U.  S.  397,  (1888) 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  is  an  appeal  by  a  steamship  company  from  a  decree 
rendered  against  it  upon  a  libel  in  admiralty,  "in  a  cause  of  action 
arising  from  breach  of  contract,"  brought  by  an  insurance  com- 
pany, claiming  to  be  subrogated  to  the  rights  of  the  owners  of 
goods  shipped  on  board  the  Montana,  one  of  the  appellant's 
steamships,  at  New  York,  to  be  carried  to  Liverpool,  and  lost  or 
damaged  by  her  stranding,  because  of  the  negligence  of  her  mas- 
ter and  officers,  in  Holyhead  Bay  on  the  coast  of  Wales,  before 
reaching  her  destination. 

In  behalf  of  the  appellant,  it  was  contended  that  the  loss  was 
caused  by  perils  of  the  sea,  without  any  negligence  on  the  part  of 
master  and  officers ;  that  the  appellant  was  not  a  common  carrier ; 
that  it  was  exempt  from  liability  by  the  terms  of  the  bills  of  lad- 
ing; and  that  the  libellant  had  not  been  subrogated  to  the  rights 
of  the  owners  of  the  goods. 

It  is  to  be  remembered  that  the  jurisdiction  of  this  court  to 
review  the  decree  below  is  limited  to  questions  of  law,  and  does 
not  extend  to  questions  of  fact.  Act  of  February  16,  1875,  c.  JJ, 
§  1 ;  18  Stat.  315 ;  The  Gazelle,  128  U.  S.  474,  484,  and  cases  there 
cited. 

In  the  findings  of  fact,  the  Circuit  Court,  after  stating,  in 
much  detail,  the  course  of  the  ship's  voyage,  the  conduct  of  her 
master  and  officers,  the  position  and  character  of  the  various 
lighthouses  and  other  safeguards  which  she  passed,  and  other 
attendant  circumstances  immediately  preceding  the  stranding,  dis- 
tinctly finds  as  facts :  "Those  in  charge  of  the  navigation  of  the 
Montana  were  negligent,  in  that,  without  having  taken  cross  bear- 
ings of  the  light  at  South  Stack,  and  so  determined  their  distance 
from  the  light,  they  took  an  east  three-quarters  south  course  be- 
fore passing  the  Skerries,  and  without  seeing  the  Skerries  light ; 
and  in  that  they  continued  at  full  speed  after  hearing  the  fog-gun 
at  North  Stack  ;  and  in  that  they  took  a  northeast  by  east  magnetic 
course  on  hearing  said  fog-gun,  instead  of  stopping  and  backing 
and  taking  a  westerly  course  out  of  Holyhead  Bay;  and  in  that 


466  PRIVATE    INTERNATIONAL  LAW. 

they  did  not  ascertain  their  position  in  Holyhead  Bay  by  means 
of  the  lights  and  fog-signals,  or  by  the  use  of  the  lead,  or  by  stop- 
ping until  they  should,  by  those  means  or  otherwise,  learn  where 
their  ship  was." 

"On  the  foregoing  facts,"  the  only  conclusion  of  law  stated 
by  the  Circuit  Court  (except  those  affecting  the  right  of  subro- 
gation and  the  amount  to  be  recovered)  is  in  these  words:  "The 
stranding  of  the  Montana  and  the  consequent  damage  to  her  cargo 
having  been  the  direct  result  of  the  negligence  of  the  master  and 
officers  of  the  steamer,  the  respondent  is  liable  therefor."  Negli- 
gence is  not  here  stated  as  a  conclusion  of  law,  but  assumed  as  a 
fact  already  found.  The  conclusion  of  law  is,  in  effect,  that,  such 
being  the  fact,  the-  respondent  is  liable,  notwithstanding  any 
clause  in  the  bills  of  lading. 

The  question  of  negligence  is  fully  and  satisfactorily  dis- 
cussed in  the  opinion  of  the  District  Court,  reported  in  17  Fed. 
Rep.  377,  and  in  that  of  the  Circuit  Court,  reported  in  22  Blatch- 
ford,  372.  It  is  largely,  if  not  wholly,  a  question  of  fact,  the  de- 
cision of  which  by  the  Circuit  Court  cannot  be  reviewed  here ;  and 
so  far  as  "it  can  possibly  be  held  to  be  or  to  involve  a  question  of 
law,  it  is  sufficient  to  say  that  the  circumstances  of  the  case,  as 
found  by  the  Circuit  Court,  clearly  warrant,  if  they  do  not  require, 
a  court  or  jury,  charged  with  the  duty  of  determining  issues  of 
fact,  to  find  that  the  stranding  was  owing  to  the  negligence  of  the 
officers  of  the  ship. 

The  contention  that  the  appellant  is  not  a  common  carrier 
may  also  be  shortly  disposed  of. 

By  the  settled  law,  in  the  absence  of  some  valid  agreement 
to  the  contrary,  the  owner  of  a  general  ship,  carrying  goods  for 
hire,  whether  employed  in  internal,  in  coasting  or  in  foreign  com- 
merce, is  a  common  carrier,  with  the  liability  of  an  insurer  against 
all  losses,  except  only  such  two  irresistible  causes  as  the  act  of 
God  and  public  enemies.  Molloy,  bk.  2,  c.  2,  §  2 ;  Bac.  Ab.  Car- 
rier, A;  Barclay  v.  Cuculla  y  Gana,  3  Doug.  389;  2  Kent  Com. 
598,  599;  Story  on  Bailments,  §  501 ;  The  Niagara,  21  How.  7, 
23 ;  The  Lady  Pike,  21  Wall.  1,  14. 

In  the  present  case,  the  Circuit    Court  has  found    as  facts: 


CONTRACTS.  467 

"The  Montana  was  an  ocean  steamer,  built  of  iron,  anxd  performed 
regular  service  as  a  common  carrier  of  merchandise  and  passen- 
gers between  the  ports  of  Liverpool,  England,  and  New  York,  in 
the  line  commonly  known  as  the  Guion  Line.  By  her,  and  by 
other  ships  in  that  line,  the  respondent  was  such  common  carrier. 
On  March  2,  1880,  the  Montana  left  the  port  of  New  York,  on 
one  of  her  regular  voyages,  bound  for  Liverpool,  England,  with 
a  full  cargo,  consisting  of  about  twenty-four  hundred  tons  of 
merchandise,  and  with  passengers."  The  bills  of  lading,  annexed 
to  the  answer  and  to  the  findings  of  fact,  show  that  the  four  ship- 
ments in  question  amounted  to  less  than  one  hundred  and  thirty 
tons,  or  hardly  more  than  one-twentieth  part  of  the  whole  cargo. 
It  is  clear,  therefore,  upon  this  record,  that  the  appellant  is  a  com- 
mon carrier,  and  liable  as  such,  unless  exempted  by  some  clause 
in  the  bills  of  lading. 

In  each  of  the  bills  of  lading,  the  excepted  perils,  for  loss  or 
damage  from  which  it  is  stipulated  that  the  appellant  shall  not  be 
responsible,  include  "barratry  of  master  or  mariners,"  and  all 
perils  of  the  seas,  rivers  or  navigation,  described  more  particularly 
in  one  of  the  bills  of  lading  as  "collision,  stranding  or  other  peril 
of  the  seas,  rivers  or  navigation,  of  whatever  nature  or  kind  so- 
ever, and  howsoever  such  collision,  stranding  or  other  peril  may 
be  caused,"  and  in  the  other  three  bills  of  lading  described  more 
generally  as  any  "accidents  of  the  seas,  rivers  and  steam  naviga- 
tion, of  whatever  nature  or  kind  soever;"  and  each  bill  of  lading 
adds,  in  the  following  words  in  the  one,  and  in  equivalent  words 
in  the  others,  "whether  arising  from  the  negligence,  default,  or 
error  in  judgment  of  the  master,  mariners,  engineers  or  others  of 
the  crew,  or  otherwise,  howsoever." 

If  the  bills  of  lading  had  not  contained  the  clause  last  quoted, 
it  is  quite  clear  that  the  other  clauses  would  not  have  relieved  the 
appellant  fiom  liability  for  the  damage  to  the  goods  from  the 
stranding  of  the  ship  through  the  negligence  of  her  officers.  Col- 
lision or  stranding  is,  doubtless,  a  peril  of  the  seas ;  and  a  policy 
of  insurance  against  perils  of  the  seas  covers  a  loss  by  stranding 
or  collision,  although  arising  from  the  negligence  of  the  master 
or  crew,  because  the  insurer  assumes  to  indemnify  the  assured 


468  PRIVATE    INTERNATIONAL   LAW. 

against  losses  from  particular  perils,  and  the  assured  does  not 
warrant  that  his  servants  shall  use  due  care  to  avoid  them.  Gen- 
eral Ins.  Co.  v.  Sherwood,  14  How.  351,  364,  365;  Orient  Ins. 
Co.  v.  Adams,  123  U.  S.  67,  73;  Copeland  v.  New  England  Ins. 
Co.,  2  Met.  432,  448-450.  But  the  ordinary  contract  of  a  carrier 
does  involve  an  obligation  on  his  part  to  use  due  care  and  skill  in 
navigating  the  vessel  and  carrying  the  goods;  and,  as  is  every- 
where held,  an  exception,  in  the  bill  of  lading,  of  perils  of  the  sea 
or  other  specified  perils  does  not  excuse  him  from  that  obligation, 
or  exempt  him  from  liability  for  loss  or  damage  from  one  of  those 
perils,  to  which  the  negligence  of  himself  or  his  servants  has  con- 
tributed. Nezv  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank, 
6  How.  344 ;  Express  Co.  v.  Kountze,  8  Wall.  341 ;  Transporta- 
tion Co.  v.  Downer,  11  Wall.  129;  Grill  v.  General  Iron  Screw 
Co.,  L.  R.  1  C  P.  600,  and  L.  R.  3  C.  P.  476;  The  Xantho,  12  App. 
Cas.  503,  510,  515. 

We  are  then  brought  to  the  consideration  of  the  principal 
question  in  the  case,  namely,  the  validity  and  effect  of  that  clause 
in  each  bill  of  lading  by  which  the  appellant  undertook  to  exempt 
itself  from  all  responsibility  for  loss  or  damage  by  perils  of  the 
sea,  arising  from  negligence  of  the  master  and  crew  of  the  ship. 

The  question  appears  to  us  to  be  substantially  determined  by 
the  judgment  of  this  court  in  Railroad  Co.  v.  Lockwood,  17  Wall. 

357- 

That  case,  indeed,  differed  in  its  facts  from  the  case  at  bar. 
It  was  an  action  brought  against  a  railroad  corporation  by  a 
drover  who,  while  being  carried  with  his  cattle  on  one  of  its  trains 
under  an  agreement  which  it  had  required  him  to  sign,  and  by 
which  he  was  to  pay  certain  rates  for  the  carriage  of  the  cattle,  to 
pass  free  himself,  and  to  take  the  risks  of  all  injuries  to  himself 
or  to  them,  was  injured  by  the  negligence  of  the  defendant  or  its 
servants. 

The  judgment  for  the  plaintiff,  however,  was  not  rested  upon 
the  form  of  the  agreement,  or  upon  any  difference  between  rail- 
road corporations  and  other  carriers,  or  between  carriers  by  land 
and  carriers  by  sea,  or  between  carriers  of  passengers  and  carriers 
of  goods,  but  upon  the  broad  ground  that  no  public  carrier  is  per- 


CONTRACTS.  469 

mitted  by  law  to  stipulate  for  an  exemption  from  the  consequences 
of  the  negligence  of  himself  or  his  servants. 

The  very  question  there  at  issue,  defined  at  the  beginning  of 
the  opinion  as  "whether  a  railroad  company,  carrying  passengers 
for  hire,  can  lawfully  stipulate  not  to  be  answerable  for  their  own 
or  their  servants'  negligence  in  reference  to  such  carriage,"  was 
stated  a  little  further  on  in  more  general  terms  as  "the  question 
before  propounded,  namely,  whether  common  carriers  may  excuse 
themselves  from  liability  for  negligence;"  and  a  negative  answer 
to  the  question  thus  stated  was  a  necessary  link  in  the  logical  chain 
of  conclusions  announced  at  the  end  of  the  opinion  as  constituting 
the  ratio  decidendi.     17  Wall.  359,  363,  384. 

The  course  of  reasoning,  supported  by  elaborate  argument 
and  illustration,  and  by  copious  references  to  authorities,  by  which 
those  conclusions  were  reached,  may  be  summed  up  as  follows : 

By  the  common  law  of  England  and  America  before  the 
Declaration  of  Independence,  recognized  by  the  weight  of  Eng- 
lish authority  for  half  a  century  afterwards,  and  upheld  by  deci- 
sions of  the  highest  courts  of  many  States  of  the  Union,  common 
carriers  could  not  stipulate  for  immunity  for  their  own  or  their 
servants'  negligence.  The  English  Railway  and  Canal  Traffic 
Act  of  1854,  declaring  void  all  notices  and  conditions  made  by 
those  classes  of  common  carriers,  except  such  as  should  be  held 
by  the  court  or  judge  before  whom  the  case  should  be  tried  to  be 
just  and  reasonable,  was  substantially  a  return  to  the  rule  of  the 
common  law. 

The  only  important  modification  by  the  Congress  of  the  Uni- 
ted States  of  the  previously  existing  law  on  this  subject  is  the  act 
of  185 1,  to  limit  the  liability  of  ship-owners,  (Act  of  March  3, 
1851,  c.  43;  9  Stat.  635;  Rev.  Stat.  §§  4282-4289,)  and  that  act 
leaves  them  liable  without  limit  for  their  own  negligence,  and 
liable  to  the  extent  of  the  ship  and  freight  for  the  negligence  or 
misconduct  of  their  master  and  crew. 

The  employment  of  a  common  carrier  is  a  public  one,  charg- 
ing him  with  the  duty  of  accommodating  the  public  in  the  line  of 
his  employment.  A  common  carrier  is  such  by  virtue  of  his  occu- 
pation, not  by  virtue  of  the  responsibilities  under  which  he  rests. 


470  PRIVATE   INTERNATIONAL  LAW. 

Even  if  the  extent  of  these  responsibilities  is  restricted  by  law  or 
by  contract,  the  nature  of  his  occupation  makes  him  a  common 
carrier  still.  A  common  carrier  may  become  a  private  carrier, 
or  a  bailee  for  hire,  when,  as  a  matter  of  accommodation  or  special 
engagement,  he  undertakes  to  carry  something  which  it  is  not  his 
business  to  carry.  But  when  a  carrier  has  a  regularly  established 
business  for  carrying  all  or  certain  articles,  and  especially  if  that 
carrier  is  a  corporation  created  for  the  purpose  of  the  carrying 
trade,  and  the  carriage  of  the  articles  is  embraced  within  the  scope 
of  its  chartered  powers,  it  is  a  common  carrier,  and  a  special  con- 
tract about  its  responsibility  does  not  divest  it  of  that  character. 

The  fundamental  principle,  upon  which  the  law  of  common 
carriers  was  established,  was  to  secure  the  utmost  care  and  dili- 
gence in  the  performance  of  their  duties.  That  end  was  effected 
in  regard  to  goods,  by  charging  the  common  carrier  as  an  insurer, 
and  in  regard  to  passengers,  by  exacting  the  highest  degree  of 
carefulness  and  diligence.  A  carrier  who  stipulates  not  to  be 
bound  to  the  exercise  of  care  and  diligence  seeks  to  put  off  the 
essential  duties  of  his  employment. 

Nor  can  those  duties  be  waived  in  respect  to  his  agents  or 
servants,  especially  where  the  carrier  is  an  artificial  being,  inca- 
pable of  acting  except  by  agents  and  servants.  The  law  demands 
of  the  carrier  carefulness  and  diligence  in  performing  the  serv- 
ice; not  merely  an  abstract  carefulness  and  diligence  in  proprie- 
tors and  stockholders  who  take  no  active  part  in  the  business.  To 
admit  such  a  distinction  in  the  law  of  common  carriers,  as  the 
business  is  now  carried  on,  would  be  subversive  of  the  very  object 
of  the  law. 

The  carrier  and  his  customer  do  not  stand  upon  a  footing  of 
equality.  The  individual  customer  has  no  real  freedom  of  choice. 
He  cannot  afford  to  higgle  or  stand  out,  and  seek  redress  in  the 
courts.  He  prefers  rather  to  accept  any  bill  of  lading,  or  to  sign 
any  paper,  that  the  carrier  presents ;  and  in  most  cases  he  has  no 
alternative  but  to  do  this,  or  to  abandon  his  business. 

Special  contracts  between  the  carrier  and  the  customer,  the 
terms  of  which  are  just  and  reasonable  and  not  contrary  to  public 
policy,  are  upheld ;  such  as  those  exempting  the  carrier  from  re- 


CONTRACTS.  471 

sponsibility  for  losses  happening  from  accident,  or  from  dangers 
of  navigation  that  no  human  skill  or  diligence  can  guard  against ; 
or  for  money  or  other  valuable  articles,  liable  to  be  stolen  or  dam- 
aged— unless  informed  of  their  character  or  value ;  or  for  perish- 
able articles  or  live  animals,  when  injured  without  default  or  neg- 
ligence of  the  carrier.  But  the  law  does  not  allow  a  public  car- 
rier to  abandon  altogether  his  obligations  to  the  public,  and  to 
stipulate  for  exemptions  which  are  unreasonable  and  improper, 
amounting  to  an  abnegation  of  the  essential  duties  of  his  employ- 
ment. 

It  being  against  the  policy  of  the  law  to  allow  stipulations 
which  will  relieve  the  railroad  company  from  the  exercise  of  care 
or  diligence,  or  which,  in  other  words,  will  excuse  it  for  negligence 
in  the  performance  of  its  duty,  the  company  remains  liable  for 
such  negligence. 

This  analysis  of  the  opinion  in  Railroad  Co.  v.  Lockwood 
shows  that  it  affirms  and  rests  upon  the  doctrine  that  an  express 
stipulation  by  any  common  carrier  for  hire,  in  a  contract  of  car- 
riage, that  he  shall  be  exempt  from  liability  for  losses  caused  by 
the  negligence  of  himself  or  his  servants,  is  unreasonable  and 
contrary  to  public  policy,  and  consequently  void.  And  such  has  al- 
ways been  the  understanding  of  this  court,  expressed  in  several 
cases.  Express  Co.  v.  Caldwell,  21  Wall.  264,  268;  Railroad  Co. 
v.  Pratt,  22  Wall.  123,  134;  Bank  of  Kentucky  v.  Adams  Express 
Co.,  93  U.  S.  174,  183;  Raihvay  Co.  v.  Stevens,  95  U.  S.  655; 
Hart  v.  Pennsylvania  Railroad,  112  U.  S.  331,  338;  Phoenix  Ins. 
Co.,  v.  Erie  Transportation  Co.,  117  U.  S.  312,  322;  Inman  v. 
South  Carolina  Railway,  ante,  128. 

The  general  doctrine  is  nowhere  stated  more  explicitly  than 
in  Hart  v.  Pennsylvania  Railroad  and  Phoenix  Ins.  Co.  v.  Erie 
Transportation  Co.,  just  cited;  and  there  does  not  appear  to  us 
to  be  anything  in  the  decision  or  opinion  in  either  of  those  cases 
which  supports  the  appellant's  position. 

In  the  one  case,  a  contract  fairly  made  between  a  railroad 
company  and  the  owner  of  the  goods,  and  signed  by  the  latter, 
by  which  he  was  to  pay  a  rate  of  freight  based  on  the  condition 
that  the  company  assumed  liability  only  to  the  extent  of  an  agreed 


472  PRIVATE    INTERNATIONAL   LAW. 

valuation  of  the  goods,  even  in  case  of  loss  or  damage  by  its  neg- 
ligence, was  upheld  as  just  and  reasonable,  because  a  proper  and 
lawful  mode  of  securing  a  due  proportion  between  the  amount  for 
which  the  carrier  might  be  responsible  and  the  compensation 
which  he  received,  and  of  protecting  himself  against  extravagant 
or  fanciful  valuations — which  is  quite  different  from  exempting 
himself  from  all  responsibility  whatever  for  the  negligence  of 
himself  and  his  servants. 

In  the  other,  the  decision  was  that,  as  a  common  carrier 
might  lawfully  obtain  from  a  third  person  insurance  on  the  goods 
carried  against  loss  by  the  usual  perils,  though  occasioned  by 
negligence  of  the  carrier's  servants,  a  stipulation  in  a  bill  of  lad- 
ing that  the  carrier,  when  liable  for  the  loss,  should  have  the  bene- 
fit of  any  insurance  effected  on  the  goods,  was  valid  as  between 
the  carrier  and  the  shipper,  even  when  the  negligence  of  the  car- 
rier's servants  was  the  cause  of  the  loss.  Upholding  an  agree- 
ment by  which  the  carrier  receives  the  benefit  of  any  insurance  ob- 
tained by  the  shipper  from  a  third  person  is  quite  different  from 
permitting  the  carrier  to  compel  the  shipper  to  obtain  insurance, 
or  to  stand  his  own  insurer,  against  negligence  on  the  part  of  the 
carrier. 

It  was  argued  for  the  appellant,  that  the  law  of  Xew  York, 
the  lex  loci  contractus,  was  settled  by  recent  decisions  of  the 
Court  of  Appeals  of  that  state  in  favor  of  the  right  of  a  carrier 
of  goods  or  passengers,  by  land  or  water,  to  stipulate  for  exemp- 
tion from  all  liability  for  his  own  negligence.  Mynard  v.  Syra- 
cuse Railroad,  71  N.  Y.  180;  Spinetti  v.  Atlas  Steamship  Co.,  80 
N.  Y.  71. 

But  on  this  subject,  as  on  any  question  depending  upon  mer- 
cantile law  and  not  upon  local  statute  or  usage,  it  is  well  settled 
that  the  courts  of  the  United  States  are  not  bound  by  decisions  of 
the  courts  of  the  State,  but  will  exercise  their  own  judgment, 
even  when  their  jurisdiction  attaches  only  by  reason  of  the  citi- 
zenship of  the  parties,  in  an  action  at  law  of  which  the  courts  of 
the  State  have  concurrent  jurisdiction,  and  upon  a  contract  made 
and  to  be  performed  within  the  State.  Railroad  Co.  v.  Lock- 
wood,  17  Wall.  357,  368;  Myrick  v.  Michigan  Central  Railroad, 


CONTRACTS  473 

107  U.  S.  102;  Carpenter  v.  Providence  Washington  Ins.  Co.,  16 
Pet.  495,  51  j  ;  Swift  v.  Tyson,  16  Pet.  1 ;  Railroad  Co.  v.  National 
Bank,  102  U.  S.  14 ;  Burgess  v.  Scligman,  107  U.  S.  20,  33  ;  Smith 
v.  Alabama,  124  U.  S.  365,  478;  Bucher  v.  Cheshire  Railroad,  125 
U.  S.  555,  583.  The  decisions  of  the  State  courts  certainly  can- 
not be  allowed  any  greater  weight  in  the  Federal  courts  when  ex- 
ercising the  admiralty  and  maritime  jurisdiction  exclusively  vested 
in  them  by  the  Constitution  of  the  United  States. 

It  was  also  argued  in  behalf  of  the  appellant,  that  the  validity 
and  effect  of  this  contract,  to  be  performed  principally  upon  the 
high  seas,  should  be  governed  by  the  general  maritime  law,  and 
that  by  that  law  such  stipulations  are  valid.  To  this  argument 
there  are  two  answers. 

First.  There  is  not  shown  to  be  any  such  general  maritime 
law.  The  industry  of  the  learned  counsel  for  the  appellant  has 
collected  articles  of  codes,  decisions  of  courts  and  opinions  of 
commentators  in  France,  Italy,  Germany,  and  Holland,  tending 
to  show  that,  by  the  law  administered  in  those  countries,  such  a 
stipulation  would  be  valid.  But  those  decisions  and  opinions  do 
not  appear  to  have  been  based  on  general  maritime  law,  but 
largely,  if  not  wholly,  upon  provisions  or  omissions  in  the  codes 
of  the  particular  country ;  and  it  has  been  said  by  many  jurists  that 
the  law  of  France,  at  least,  was  otherwise.  See  2  Pardessus  Droit 
Commercial,  no.  542;  4  Goujet  &  Meyer  Diet.  Droit  Commercial 
(2d  ed.)  Voiturier,  nos.  1,  81 ;  2  Troplong  Droit  Civil,  nos.  894, 
910,  942,  and  other  books  cited  in  Peninsular  &  Oriental  Co.  v. 
Shand,  3  Moore  P.  C.  (N.  S.)  272,  278,  285,  286;  25  Laurent 
Droit  Civil  Francais,  no.  532;  Mellish,  L.  J.,  in  Cohen  v.  South- 
eastern Railway,  2  Ex.  D.  253,  257. 

Second.  The  general  maritime  law  is  in  force  in  this  coun- 
try, or  in  any  other,  so  far  only  as  it  has  been  adopted  by  the  laws 
or  usages  thereof ;  and  no  rule  of  the  general  maritime  law  (if  any 
exists)  concerning  the  validity  of  such  a  stipulation  as  that  now 
before  us  has  ever  been  adopted  in  the  United  States  or  in  Eng- 
land, or  recognized  in  the  admiralty  courts  of  either.  The  Lotta- 
•wanna,  21  Wall.  558;  The  Scotland,  105  U.  S.  24,  29,  33;  The 
Belgenland,  114  U.  S.  355,  369;  The  Harrisburg,  119,  U.  S.  199; 


474  PRIVATE   INTERNATIONAL  LAW. 

The  Hamburg,  2  Moore  P.  C.  (N.  S.)  289,  319;  5.  C.  Brown.  & 
Lush.  253,  272;  Lloyd  v.  Guibert,  L.  R.  1  Q.  B.  115,  123,  124; 
5".  C.  6  B.  &  S.  100,  134,  136;  The  Gaetano  &  Maria,  7  P.  D.  137, 

143- 

It  was  argued  in  this  court,  as  it  had  been  below,  that  as  the 
contract  was  to  be  chiefly  performed  on  board  of  a  British  vessel 
and  to  be  finally  completed  in  Great  Britain,  and  the  damage  oc- 
curred in  Great  Britain,  the  case  should  be  determined  by  the 
British  law,  and  that  by  that  law  the  clause  exempting  the  appel- 
lant from  liability  for  losses  occasioned  by  the  negligence  of  its 
servants  was  valid. 

The  Circuit  Court  declined  to  yield  to  this  argument,  upon 
two  grounds :  1st.  That  as  the  answer  expressly  admitted  the 
jurisdiction  of  the  Circuit  Court  asserted  in  the  libel,  and  the  law 
of  Great  Britain  had  not  been  set  up  in  the  answer  nor  proved  as 
a  fact,  the  case  must  be  decided  according  to  the  law  of  the  Fed- 
eral courts,  as  a  question  of  general  commercial  law.  2d.  That 
there  was  nothing  in  the  contracts  of  affreightment  to  indicate  a 
contracting  in  view  of  any  other  law  than  the  recognized  law  of 
such  forum  in  the  United  States  as  should  have  cognizance  of 
suits  on  the  contracts.     22  Blatchford,  397. 

The  law  of  Great  Britain,  since  the  Declaration  or  Independ- 
ence is  the  law  of  a  foreign  country,  and,  like  any  other  foreign 
law,  is  matter  of  fact,  which  the  courts  of  this  country  cannot  be 
presumed  to  be  acquainted  with,  or  to  have  judicial  knowledge 
of,  unless  it  is  pleaded  and  proved. 

The  rule  that  the  courts  of  one  country  cannot  take  cogni- 
zance of  the  law  of  another  without  plea  and  proof  has  been  con- 
stantly maintained,  at  law  and  in  equity,  in  England  and  America. 
Church  v.  Hubbart,  2  Cranch,  187,  236;  Ennis  v.  Smith,  14  How. 
400,  426,  427;  Dainese  v.  Hale,  91  U.  S.  13,  20,  21 ;  Pierce  v. 
Indseth,  106  U.  S.  546;  Ex  parte  Cridland,  3  Ves.  &  B.  94,  99; 
Lloyd  v.  Guibert,  L.  R.  1  Q.  B.  115,  129;  S.  C.  6  B.  &  S.  100,  142. 
In  the  case  last  cited,  Mr.  Justice  Willes,  delivering  judgment  in 
the  Exchequer  Chamber,  said :  "In  order  to  preclude  all  misappre- 
hension, it  may  be  well  to  add,  that  a  party  who  relies  upon  a 
right  or  an  exemption  by  foreign  law  is  bound  to  bring  such  law 


CONTRACTS.  475 

properly  before  the  court,  and  to  establish  it  in  proof.  Otherwise 
the  court,  not  being  entitled  to  notice  such  law  wthout  judicial 
proof,  must  proceed  according  to  the  law  of  England." 

The  decision  in  Lamar  v.  Micou,  112  U.  S.  452,  and  114  U. 
S.  218,  did  not  in  the  least  qualify  this  rule,  but  only  applied  the 
settled  doctrine  that  the  Circuit  Courts  of  the  United  States,  and 
this  court  on  appeal  from  their  decisions,  take  judicial  notice  of 
the  laws  of  the  several  States  of  the  Union  as  domestic  laws ;  and 
it  has  since  been  adjudged,  in  accordance  with  the  general  rule  as 
to  foreign  law,  that  this  court,  upon  writ  of  error  to  the  highest 
court  of  a  State,  does  not  take  judicial  notice  of  the  law  of  another 
State,  not  proved  in  that  court  and  made  part  of  the  record  sent 
up,  unless  by  the  local  law  that  court  takes  judicial  notice  of  it. 
Hanley  v.  Donohue,  116  U.  S.  1;  Renaud  v.  Abbott,  116  U.  S. 
277,  285. 

The  rule  is  as  well  established  in  courts  of  admiralty  as  in 
courts  of  common  law  or  courts  of  equitv.  Chief  Justice  Mar- 
shall, delivering  judgment  in  the  earliest  admiralty  appeal  in 
which  he  took  part,  said :  "That  the  laws  of  a  foreign  nation,  de- 
signed only  for  the  direction  of  its  own  affairs,  are  not  to  be  no- 
ticed by  the  courts  of  other  countries,  unless  proved  as  facts,  and 
that  this  court,  with  respect  to  facts,  is  limited  to  the  statement 
made  in  the  court  below,  cannot  be  questioned."  Talbot  v.  See- 
man,  1  Cranch,  1,  38.  And  in  a  recent  case  in  admiralty,  Mr. 
Justice  Bradley  said:  "If  a  collision  should  occur  in  British 
waters,  at  least  between  British  ships,  and  the  injured  party  should 
seek  relief  in  our  courts,  we  would  administer  justice  according 
to  the  British  law,  so  far  as  the  rights  and  liabilities  of  the  parties 
were  concerned,  provided  it  were  shown  what  that  law  was.  If 
not  shown,  we  would  apply  our  own  law  to  the  case.  In  the 
French  or  Dutch  tribunals  they  would  do  the  same."  The  Scot- 
land, 105  U.  S.  24,  29. 

So  Sir  William  Scott,  in  the  High  Court  of  Admiralty,  said : 
"Upon  all  principles  of  common  jurisprudence,  foreign  law  is  al- 
ways to  be  proved  as  a  fact."  The  Louis,  2  Dodson,  210,  241. 
To  the  same  effect  are  the  judgments  of  the  Judicial  Committee 
of  the  Privy  Council  in  The  Prince  George,  4  Moore  P.  C.  21,  and 


476  PRIVATE    INTERNATIONAL    LAW. 

The  Peerless,  13  Moore  P.  C.  484.  And  in  a  more  recent  case, 
cited  by  the  appellant,  Sir  Robert  Phillimore,  said:  "I  have  no 
doubt  whatever  that  those  who  rely  upon  the  difference  between 
the  foreign  law  and  the  law  of  the  forum  in  which  the  case  is 
brought  are  bound  to  establish  that  difference  by  competent  evi- 
dence."    The  Duero,  L.  R.  2  Ad.  &  Ec.  393,  397. 

It  was,  therefore,  rightly  held  by  the  Circuit  Court,  upon  the 
pleadings  and  proofs  upon  which  the  case  had  been  argued,  that 
the  question  whether  the  British  law  differed  from  our  own  was 
not  open. 

But  it  appears  by  the  supplemental  record,  certified  to  this 
court  in  obedience  to  a  writ  of  certiorari,  that  after  the  Circuit 
Court  had  delivered  its  opinion  and  filed  its  findings  of  fact  and 
conclusions  of  law,  and  before  the  entry  of  a  final  decree,  the  ap- 
pellant moved  for  leave  to  amend  the  answer  by  averring  the  ex- 
istence of  the  British  law  and  its  applicability  to  this  case,  and  to 
prove  that  law ;  and  that  the  motion  was  denied  by  the  Circuit 
Court,  because  the  proposed  allegation  did  not  set  up  any  fact 
unknown  to  the  appellant  at  the  time  of  filing  the  original  answer, 
and  could  not  be  allowed  under  the  rules  of  that  court.  22 
Blatchford,  402-404. 

On  such  a  question  we  should  be  slow  to  overrule  a  deci- 
sion of  the  Circuit  Court.  But  we  are  not  prepared  to  say  that 
if,  upon  full  consideration,  justice  should  appear  to  require  it.  we 
might  not  do  so,  and  order  the  case  to  be  remanded  to  that  court 
with  directions  to  allow  the  answer  to  be  amended  and  proof  of 
the  foreign  law  to  be  introduced.  The  Adeline,  9  Cranch,  244, 
284;  The  Marianna  Flora,  11  Wheat.  1,  38;  The  Charles  Mor- 
gan, 115  U.  S.  69;  Merchants'  Ins.  Co.  v.  Allen,  121  U.  S.  67; 
The  Gazelle,  128  U.  S.  474.  And  the  question  of  the  effect  which 
the  law  of  Great  Britain,  if  duly  alleged  and  proved,  should  have 
upon  this  case  has  been  fully  and  ably  argued. 

Under  these  circumstances,  we  prefer  not  to  rest  our  judg- 
ment upon  technical  grounds  of  pleading  or  evidence,  but,  taking 
the  same  course  as  in  MercJiants  Ins.  Co.  v.  Allcu,  just  cited,  pro- 
ceed to  consider  the  question  of  the  effect  of  the  proof  offered,  if 
admitted. 


CONTRACTS.  477 

It  appears  by  the  cases  cited  in  behalf  of  the  appellant,  and 
is  hardly  denied  by  the  appellee,  that  under  the  existing  law  of 
Great  Britain,  as  declared  by  the  latest  decisions  of  her  courts, 
common  carriers,  by  land  or  sea,  except  so  far  as  they  are  con- 
trolled by  the  provisions  of  the  Railway  and  Canal  Traffic  Act  of 
1854,  are  permitted  to  exempt  themselves  by  express  contract 
from  responsibility  for  losses  occasioned  by  negligence  of  their 
servants.  The  Ducro,  L.  R.  2  Ad.  &  Ec.  393 ;  Taubman  v.  Pacific 
Co.,  26  Law  Times  (N.  S.)  704;  Steel  v.  State  Line  Steamship 
Co.,  3  App.  Cas.  72;  Manchester  &c.  Railway  v.  Brown,  8  App. 
Cas.  703.  It  may  therefore  be  assumed  that  the  stipulation  now  in 
question,  though  invalid  by  our  law,  would  be  valid  according  to 
the  law  of  Great  Britain. 

The  general  rule  as  to  what  law  should  prevail,  in  case  of  a 
conflict  of  laws  concerning  a  private  contract,  was  concisely  and 
exactly  stated  before  the  Declaration  of  Independence  by  Lord 
Mansfield  (as  reported  by  Sir  William  Blackstone,  who  had  been 
of  counsel  in  the  case)  as  follows :  "The  general  rule,  established 
ex  comitate  ct  jure  gentium,  is  that  the  place  where  the  contract 
is  made,  and  not  where  the  action  is  brought,  is  to  be  considered 
in  expounding  and  enforcing  the  contract.  But  this  rule  admits 
of  an  exception,  when  the  parties  (at  the  time  of  making  the  con- 
tract) had  a  view  to  a  different  kingdom."  Robinson  v.  Bland, 
1  W.  Bl.  234,  256,  258 ;  S.  C.2  Bur.  1077,  1078. 

The  recent  decisions  by  eminent  English  judges,  cited  at  the 
bar,  so  clearly  affirm  and  so  strikingly  illustrate  the  rule,  as  ap- 
plied to  cases  more  or  less  resembling  the  case  before  us,  that  a 
full  statement  of  them  will  not  be  inappropriate. 

In  Peninsular  &  Oriental  Co.  v.  Shand,  3  Moore  P.  C.  (N. 
S.)  272,  290,  Lord  Justice  Turner,  delivering  judgment  in  the 
Privy  Council,  reversing  a  decision  of  the  Supreme  Court  of 
Mauritius,  said,  "The  general  rule  is,  that  the  law  of  the  country 
where  a  contract  is  made  governs  as  to  the  nature,  the  obligation 
and  the  interpretation  of  it.  The  parties  to  a  contract  are  either 
the  subjects  of  the  power  there  ruling,  or  as  temporary  residents 
owe  it  a  temporary  allegiance ;  in  either  case  equally,  they  must 
be  understood  to  submit  to  the  law  there  prevailing,  and  to  agree 


478  PRIVATE   INTERNATIONAL   LAW. 

to  its  action  upon  their  contract.  It  is,  of  course,  immaterial  that 
such  agreement  is  not  expressed  in  terms ;  it  is  equally  an  agree- 
ment in  fact,  presumed  de  jure,  and  a  foreign  court  interpreting 
or  enforcing  it  on  any  contrary  rule  defeats  the  intention  of  the 
parties,  as  well  as  neglects  to  observe  the  recognized  comity  of 
nations." 

It  was  accordingly  held,  that  the  law  of  England,  and  not 
the  French  law  in  force  at  Mauritius,  governed  the  validity  and 
construction  of  a  contract  made  in  an  English  port  between  an 
English  company  and  an  English  subject  to  carry  him  hence  by 
way  of  Alexandria  and  Suez  to  Mauritius,  and  containing  a  stipu- 
lation that  the  company  should  not  be  liable  for  loss  of  passengers' 
baggage,  which  the  court  in  Mauritius  had  held  to  be  invalid  by 
the  French  law.     3  Moore  P.  C.  (N.S.)  278. 

Lord  Justice  Turner  observed,  that  it  was  a  satisfaction  to 
find  that  the  Court  of  Cassation  in  France  had  pronounced  a  judg- 
ment to  the  same  effect,  under  precisely  simliar  circumstances,  in 
the  case  of  a  French  officer  taking  passage  at  Hong  Kong,  an 
English  possession,  for  Marseilles  in  France,  under  a  like  con- 
tract, on  a  ship  of  the  same  company,  which  was  wrecked  in  the 
Red  Sea,  owing  to  the  negligence  of  her  master  and  crew.  Julien 
v.  Peninsular  &  Oriental  Co.,  imperfectly  stated  in  3  Moore  P. 
C.  (N.  S.)  282,  note,  and  fully  reported  in  75  Journal  du  Palais 
(1864)  225. 

The  case  of  Lloyd  v.  Guibert,  6  B.  &  S.  100;  5".  C.  L.  R.  1. 
Q.  B.  115;  decided  in  the  Queen's  Bench  before,  and  in  the  Ex- 
chequer Chamber  after,  the  decision  in  the  Privy  Council  just 
referred  to,  presented  this  peculiar  state  of  facts :  A  French  ship 
owned  by  Frenchmen  was  chartered  by  the  master,  in  pursuance 
of  his  general  authority  as  such,  in  a  Danish  West  India  island, 
to  a  British  subject,  who  knew  her  to  be  French,  for  a  voyage 
from  St.  Marc  in  Hayti  to  Havre,  London  or  Liverpool,  at  the 
charterer's  option,  and  he  shipped  a  cargo  from  St.  Marc  to  Liver- 
pool. On  the  voyage,  the  ship  sustained  damage  from  a  storm 
which  compelled  her  to  put  into  a  Portuguese  port.  There  the 
master  lawfully  borrowed  money  on  bottomry,  and  repaired  the 
ship,  and  she  carried  her  cargo  safe  to  Liverpool.  The  bondholder 


CONTRACTS.  479 

proceeded  in  an  English  Court  of  Admiralty  against  the 
ship,  freight  and  cargo,  which  being  insufficient  to  satisfy  the 
bond,  he  brought  an  action  at  law  to  recover  the  deficiency  against 
the  owners  of  the  ship ;  and  they  abandoned  the  ship  and  freight 
in  such  a  manner  as  by  the  French  law  absolved  them  from  lia- 
bility. It  was  held,  that  the  French  law  governed  the  case,  and 
therefore  the  plaintiff  could  not  recover. 

It  thus  appears  that  in  that  case  the  question  of  the  intent  of 
the  parties  was  complicated  with  that  of  the  lawful  authority  of 
the  master ;  and  the  decision  in  the  Queen's  Bench  was  put  wholly 
upon  the  ground  that  the  extent  of  his  authority  to  bind  the  ship, 
the  freight  or  the  owners  was  limited  by  the  law  of  the  home  port 
of  the  ship,  of  which  her  flag  was  sufficient  notice.  6  B.  &  S. 
100.  That  decision  was  in  accordance  with  an  earlier  one  of  Mr. 
Justice  Story,  in  Pope  v.  Nickerson,  3  Story,  465 ;  as  well  as  with 
later  ones  in  the  Privy  Council,  on  appeal  from  the  High  Court 
of  Admiralty,  in  which  the  validity  of  a  bottomry  bond  has  been 
determined  by  the  law  prevailing  at  the  home  port  of  the  ship,  and 
not  by  the  law  of  the  port  where  the  bond  was  given.  The  Kar- 
nak,  L.  R.  2  P.  C.  505,  512;  The  Gaetano  &  Maria,  7  P.  D.  137. 
See  also  The  Woodland,  7  Benedict,  no,  118;  14  Blatchford,  499, 
503,  and  104  U.  S.  180. 

The  judgment  in  the  Exchequer  Chamber  in  Lloyd  v.  Gui- 
bert  was  put  upon  somewhat  broader  ground.  Mr.  Justice  Willes, 
in  delivering  that  judgment,  said:  "It  is  generally  agreed  that 
the  law  of  the  place  where  the  contract  is  made  is  prima  facie  that 
which  the  parties  intended,  or  ought  to  be  presumed  to  have 
adopted  as  the  footing  upon  which  they  dealt,  and  that  such  law 
ought  therefore  to  prevail  in  the  absence  of  circumstances  indicat- 
ing a  different  intention,  as,  for  instance,  that  the  contract  is  to 
be  entirely  performed  elsewhere,  or  that  the  subject  matter  is 
immovable  property  situated  in  another  country,  and  so  forth ; 
which  latter,  though  sometimes  treated  as  distinct  rules,  appear 
more  properly  to  be  classed  as  exceptions  to  the  more  general  one, 
by  reason  of  the  circumstances  indicating  an  intention  to  be  bound 
by  a  law  different  from  that  of  the  place  where  the  contract  is 
made;  which  intention  is  inferred  from  the  subject  matter  and 


480  PRIVATE    INTERNATIONAL   LAW. 

from  the  surrounding  circumstances,  so  far  as  they  are  relevant 
to  construe  and  determine  the  character  of  the  contract."  L.  R. 
i  Q.  B.  122,  123 ;  6  B.  &S.  133. 

It  was  accordingly  held,  conformably  to  the  judgment  in 
Peninsular  &  Oriental  Co.  v.  Shand,  above  cited,  that  the  law  of 
England,  as  the  law  of  the  place  of  final  performance  or  port  of 
discharge,  did  not  govern  the  case,  because  it  was  "manifest  that 
what  was  to  be  done  at  Liverpool  was  but  a  small  portion  of  the 
entire  service  to  be  rendered,  and  that  the  character  of  the  con- 
tract cannot  be  determined  thereby,"  although  as  to  the  mode  of 
delivery  the  usages  of  Liverpool  would  govern.  L.  R.  1  Q.  B. 
125,  126;  6  B.  &  S.  137.  It  was  then  observed  that  the  law  of 
Portugal,  in  force  where  the  bottomry  bond  was  given,  could  not 
affect  the  case ;  that  the  law  of  Hayti  had  not  been  mentioned  or 
relied  upon  in  argument;  and  that  "in  favor  of  the  law  of  Den- 
mark, there  is  the  cardinal  fact  that  the  contract  was  made  in 
Danish  territory,  and  further,  that  the  first  act  done  towards  per- 
formance was  weighing  anchor  in  a  Danish  port;"  and  it  was 
finally,  upon  a  view  of  all  the  circumstances  of  the  case,  decided 
that  the  law  of  France,  to  which  the  ship  and  her  owners  be- 
longed, must  govern  the  question  at  issue. 

The  decision  was,  in  substance,  that  the  presumption  that  the 
contract  should  be  governed  by  the  law  of  Denmark,  in  force 
where  it  was  made,  was  not  overcome  in  favor  of  the  law  of  Eng- 
land, by  the  fact  that  the  voyage  was  to  an  English  port  and  the 
charterer  an  Englishman,  nor  in  favor  of  the  law  of  Portugal  by 
the  fact  that  the  bottomry  bond  was  given  in  a  Portuguese  port ; 
but  that  the  ordinary  presumption  was  overcome  by  the  consid- 
eration that  French  owners  and  an  English  charterer,  making  a 
charter  party  in  the  French  language  of  a  French  ship,  in  a  port 
where  both  were  foreigners,  to  be  performed  partly  there  by 
weighing  anchor  for  the  port  of  loading,  (a  place  where  both 
parties  would  also  be  foreigners,)  partly  at  that  port  by  taking 
the  cargo  on  board,  principally  on  the  high  seas,  and  partly  by 
final  delivery  in  the  port  of  discharge,  must  have  intended  to  look 
to  the  law  of  France  as  governing  the  question  of  the  liability  of 
the  owner  beyond  the  value  of  the  ship  and  freight. 


CONTRACTS.  481 

In  two  later  cases,  in  each  of  which  the  judgment  of  the 
Queen's  Bench  Division  was  affirmed  by  the  Court  of  Appeal,  the 
law  of  the  place  where  the  contract  was  made  was  held  to  gov- 
ern, notwithstanding  some  of  the  facts  strongly  pointed  towards 
the  application  of  another  law ;  in  the  one  case,  to  the  law  of  the 
ship's  flag;  and  in  the  other,  to  the  law  of  the  port  where  that 
part  of  the  contract  was  to  be  performed,  for  the  nonperformance 
of  which  the  suit  was  brought. 

In  the  first  case,  a  bill  of  lading,  issued  in  England  in  the 
English  language  to  an  English  subject,  by  a  company  described 
therein  as  an  English  company  and  in  feet  registered  both  in 
England  and  in  Holland,  for  goods  shipped  at  Singapore,  an  Eng- 
lish port,  to  be  carried  to  a  port  in  Java,  a  Dutch  possession,  in  a 
vessel  with  a  Dutch  name,  registered  in  Holland,  commanded  by 
a  Dutch  master  and  carrying  the  Dutch  flag,  in  order  to  obtain 
the  privilege  of  trading  with  Java,  was  held  to  be  governed  by 
the  law  of  England,  and  not  by  that  of  Holland,  in  determining 
the  validity  and  construction  of  a  clause  exempting  the  company 
from  liability  for  negligence  of  master  and  crew ;  and  Lords  Jus- 
tices Brett  and  Lindley  both  considered  it  immaterial  whether  the 
ship  was  regarded  as  English  or  Dutch.  Chartered  Bank  of 
India  v.  Netherlands  Steam  Navigation  Co.,  9  Q.  B.  D.  118,  and 
10  Q.  B.  D.  521,  529,  536,  540,  544. 

As  Lord  Justice  Lindley  observed :  "This  conclusion  is  not 
at  all  at  variance  with  Lloyd  v.  Guibert,  but  rather  in  accordance 
with  it.  It  is  true  that  in  that  case  the  law  of  the  flag  prevailed ; 
but  the  intention  of  the  parties  was  admitted  to  be  the  crucial 
test ;  and  the  law  of  the  ship's  flag  was  considered  as  the  law  in- 
tended by  the  parties  to  govern  their  contract,  as  there  really  was 
no  other  law  which  they  could  reasonably  be  supposed  to  have 
contemplated.  The  plaintiff  there  was  English,  the  defendant 
French  ;  the  lex  loci  contractus  was  Danish ;  the  ship  was  French ; 
her  master  was  French,  and  the  contract  was  in  the  French  lan- 
guage. The  voyage  was  from  Hayti  to  Liverpool.  The  facts 
here  are  entirely  different,  and  so  is  the  inference  to  be  deduced 
from  them.  The  lex  loci  contractus  was  here  English,  and  ought 
to  prevail  unless  there  is  some  good  ground  to  the  contrary.     So 


482  PRIVATE  INTERNATIONAL  LAW. 

far  from  there  being  such  ground,  the  inference  is  very  strong 
that  the  parties  really  intended  to  contract  with  reference  to  Eng- 
lish law."     10  Q.  B.  D.  540. 

In  the  remaining  English  case,  a  contract  made  in  London 
between  two  English  mercantile  houses,  by  which  one  agreed  to 
sell  to  the  other  20,000  tons  of  Algerian  esparto,  to  be  shipped  by 
a  French  company  at  an  Algerian  port  on  board  vessels  furnished 
bv  the  purchasers  at  London,  and  to  be  paid  for  by  them  in  Lon- 
don on  arrival,  was  held  to  be  an  English  contract,  governed  by 
English  law ;  notwithstanding  that  the  shipment  of  the  goods  in 
Algiers  had  been  prevented  by  vis  major,  which,  by  the  law  of 
France  in  force  there,  excused  the  seller  from  performing  the 
contract.    Jacobs  v.  Credit  Lyonnais,  12  Q.  B.  D.  589. 

That  result  was  reached  by  applying  the  general  rule,  ex- 
pressed by  Denman,  J.,  in  these  words :  "The  general  rule  is,  that 
where  a  contract  is  made  in  England  between  merchants  carrying 
on  business  here,  as  this  is,  but  to  be  performed  elsewhere,  the 
construction  of  the  contract,  and  all  its  incidents,  are  to  be  gov- 
erned by  the  law  of  the  country  where  the  contract  is  made,  unless 
there  is  something  to  show  that  the  intention  of  the  parties  was 
that  the  law  of  the  country  where  the  contract  is  to  be  performed 
should  prevail ;"  and  summed  up  by  the  Court  of  Appeal,  consist- 
ing of  Brett.  M.  R.,  and  Bowen,  L.  J.,  as  follows:  "The  broad 
rule  is  that  the  law  of  a  country  where  a  contract  is  made  pre- 
sumably governs  the  nature,  the  obligation  and  the  interpretation 
of  it,  unless  the  contrary  appears  to  be  the  express  intention  of  the 
parties."     12  Q.  B.  D.  596,  597,  600. 

This  court  has  not  heretofore  had  occasion  to  consider  by 
what  law  contracts  like  those  now  before  us  should  be  expounded. 
But  it  has  often  affirmed  and  acted  on  the  general  rule,  that  con- 
tracts are  to  be  governed,  as  to  their  nature,  their  validity  and 
their  interpretation,  by  the  law  of  the  place  where  they  were 
made,  unless  the  contracting  parties  clearly  appear  to  have  had 
some  other  law  in  view.  Cox  v.  United  States,  6  Pet.  172 ;  Scud- 
der  v.  Union  Bank,  91  U.  S.  406;  Pritchard  v.  Norton,  106  U.  S. 
124;  Lamar  v.  Micou,  114  U.  S.  218;  Watts  v.  Camors,  115  U.  S. 
353,  362. 


CONTRACTS.  483 

The  opinion  in  Watts  v.  Camors,  just  cited,  may  require  a 
word  or  two  of  explanation.  It  was  there  contested  whether,  in 
a  charter  party  made  at  New  Orleans  between  an  English  owner 
and  an  American  charterer  of  an  English  ship  for  a  voyage  from 
New  Orleans  to  a  port  on  the  continent  of  Europe,  a  clause  regu- 
lating the  amount  payable  in  case  of  any  breach  of  the  contract 
was  to  be  considered  as  liquidating  the  damages,  or  as  a  penalty 
only.  Such  was  the  question  of  which  the  court  said  that  if  it 
depended  upon  the  intent  of  the  parties,  and  consequently  upon 
the  law  which  they  must  be  presumed  to  have  had  in  view,  they 
"must  be  presumed  to  look  to  the  general  maritime  law  of  the  two 
countries,  and  not  to  the  local  law  of  the  State  in  which  the  con- 
tract is  signed."  The  choice  there  was  not  between  the  Ameri- 
can law  and  the  English  law,  but  between  the  statutes  and  deci- 
sions of  the  State  of  Louisiana,  and  a  rule  of  the  maritime  law 
common  to  the  United  States  and  England. 

Some  reliance  was  placed  by  the  appellant  upon  the  follow- 
ing observations  of  Mr.  Justice  Story,  sitting  in  the  Circuit 
Court : 

"If  a  contract  is  to  be  performed,  partly  in  one  country  and 
partly  in  another  country,  it  admits  of  a  double  aspect,  nay,  it  has 
a  double  operation,  and  is,  as  to  the  particular  parts,  to  be  inter- 
preted distinctively ;  that  is,  according  to  the  laws  of  the  country 
where  the  particular  parts  are  to  be  performed  or  executed.  This 
would  be  clearly  seen  in  the  case  of  a  bill  of  lading  of  goods,  de- 
liverable in  portions  or  parts  at  ports  in  different  countries.  In- 
deed, in  cases  of  contracts  of  affreightment  and  shipment,  it  must 
often  happen  that  the  contract  looks  to  different  portions  of  it  to 
be  performed  in  different  countries ;  some  portions  at  the  home 
port,  some  at  the  foreign  port,  and  some  at  the  return  port." 
"The  goods  here  were  deliverable  in  Philadelphia;  and  what 
would  be  an  effectual  delivery  thereof,  in  the  sense  of  the  law, 
(which  is  sometimes  a  nice  question,)  would,  beyond  question, 
be  settled  by  the  law  of  Pennsylvania.  But  to  what  extent  the 
owners  of  the  schooner  are  liable  to  the  shippers  for  a  non-fulfil- 
ment of  a  contract  of  shipment  of  the  master — whether  they  in- 
cur an  absolute  or  a  limited  liability,  must  depend  upon  the  na- 


484  PRIVATE    INTERNATIONAL   LAW. 

ture  and  extent  of  the  authority  which  the  owners  gave  him,  and 
this  is  to  be  measured  by  the  law  of  Massachusetts,"  where  the 
ship  and  her  owners  belonged.     Pope  v.  Nickerson,  3  Story,  465, 

484,  485. 

But  in  that  case  the  last  point  stated  was  the  only  one  in 
judgment ;  and  the  previous  remarks  evidently  had  regard  to  such 
distinct  obligations  included  in  the  contract  of  affreightment  as 
are  to  be  performed  in  a  particular  port — for  instance,  what  would 
be  an  effectual  delivery,  so  as  to  terminate  the  liability  of  the  car- 
rier, which,  in  the  absence  of  express  stipulation  on  that  subject, 
is  ordinarily  governed  by  the  law  or  usage  of  the  port  of  dis- 
charge. Robertson  v.  Jackson,  2  C.  B.  412;  Lloyd  v.  Guibert,  L. 
R.  1  Q.  B.  115,  126;  S.  C.  6  B.  &  S.  100,  137. 

In  Morgan  v.  New  Orleans  &c.  Railroad,  2  Woods,  244,  a 
contract  made  in  New  York,  by  a  person  residing  there,  with  a 
railroad  corporation  having  its  principal  office  there  but  deriving 
its  powers  from  the  laws  of  other  states,  for  the  conveyance  of 
interests  in  railroads  and  steamboat  lines,  the  delivery  of  property 
and  the  building  of  a  railroad  in  those  states,  and  which,  there- 
fore, might  be  performed  partly  in  New  York,  and  must  be  per- 
formed partly  in  the  other  states,  was  held  by  Mr.  Justice  Brad- 
ley, so  far  as  concerned  the  right  of  one  party  to  have  the  con- 
tract rescinded  on  account  of  nonperformance  by  the  other  party, 
to  be  governed  by  the  law  of  New  York,  and  not  by  either  of  the 
diverse  laws  of  the  other  states  in  which  parts  of  the  contract 
were  to  be  performed. 

In  Hale  v.  New  Jersey  Steam  Navigation  Co.,  15  Conn.  538, 
546,  goods  were  shipped  at  New  York  for  Providence  in  Rhode 
Island  or  Boston  in  Massachusetts,  on  a  steamboat  employed  in 
the  business  of  transportation  between  New  York  and  Provi- 
dence; and  an  exemption,  claimed  by  the  carrier  under  a  public 
notice,  was  disallowed  by  the  Supreme  Court  of  Connecticut,  be- 
cause by  the  then  law  of  New  York  the  liability  of  a  common  car- 
rier could  not  be  limited  by  such  a  notice.  Chief  Justice  Wil- 
liams, delivering  judgment,  said:  "The  question  is,  by  what  law 
is  this  contract  to  be  governed.  The  rule  upon  that  subject  is 
well  settled,  and  has  been  often  recognized  by  this  court,  that  con- 


CONTRACTS.  485 

tracts  are  to  be  construed  according  to  the  laws  of  the  state  where 
made,  unless  it  is  presumed  from  their  tenor  that  they  were  en- 
tered into  with  a  view  to  the  laws  of  some  other  state.  There  is 
nothing  in  this  case,  either  from  the  location  of  the  parties  or 
the  nature  of  the  contract,  which  shows  that  they  could  have  had 
any  other  law  in  view  than  that  of  the  place  where  it  was  made. 
Indeed,  as  the  goods  were  shipped  to  be  transported  to  Boston 
or  Providence,  there  would  be  the  most  entire  uncertainty  what 
was  to  be  the  law  of  the  case  if  any  other  rule  was  to  prevail.  We 
have,  therefore,  no  doubt  that  the  law  of  New  York,  as  to  the 
duties  and  obligations  of  common  carriers,  is  to  be  the  law  of  the 
case." 

In  Dyke  v.  Erie  Railway,  45  N.  Y.  113,  117,  a  passenger 
travelling  upon  a  ticket  by  which  a  railroad  corporation,  estab- 
lished in  New  York,  and  whose  road  extended  from  one  place  to 
another  in  that  state,  passing  through  the  States  of  Pennsylvania 
and  New  Jersey  by  their  permission,  agreed  to  carry  him  from 
one  to  another  place  in  New  York,  was  injured  in  Pennsylvania, 
by  the  law  of  which  the  damages  in  actions  against  railroads  for 
personal  injury  were  limited  to  $3000.  The  Court  of  Appeals  of 
New  York  held  that  the  law  of  Pennsylvania  had  no  application 
to  the  case  ;  and  Mr.  Justice  Allen,  delivering  the  opinion,  referred 
to  the  case  of  Peninsular  &  Oriental  Co.  v.  Shand,  before  cited, 
as  analogous  in  principle,  and  said :  ''The  contract  was  single  and 
the  performance  one  continuous  act.  The  defendant  did  not  un- 
dertake for  one  specific  act,  in  part  performance,  in  one  state,  and 
another  specific  and  distinct  act  in  another  of  the  states  named, 
as  to  which  the  parties  could  be  presumed  to  have  had  in  view 
the  laws  and  usages  of  distinct  places.  Whatever  was  done  in 
Pennsylvania  was  a  part  of  the  single  act  of  transportation  from 
Attica  or  Waverly,  in  the  State  of  New  York,  to  the  city  of  New 
York,  and  in  performance  of  an  obligation  assumed  and  under- 
taken in  this  state,  and  which  was  indivisible.  The  obligation 
was  created  here,  and  by  force  of  the  laws  of  this  state,  and  force 
and  effect  must  be  given  to  it  in  conformity  to  the  laws  of  New 
York.  The  performance  was  to  commence  in  New  York,  and 
to  be  fully  completed  in  the  same  state,  but  liable  to  breach,  par- 


486  PRIVATE    INTERNATIONAL   LAW. 

tial  or  entire,  in  the  States  of  Pennsylvania  and  New  Jersey, 
through  which  the  road  of  the  defendant  passed ;  but  whether  the 
contract  was  broken,  and  if  broken  the  consequences  of  the 
breach,  should  be  determined  by  the  laws  of  this  state.  It  can- 
not be  assumed  that  the  parties  intended  to  subject  the  contract 
to  the  laws  of  the  other  states,  or  that  their  rights  and  liabilities 
should  be  qualified  or  varied  by  any  diversities  that  might  exist 
between  the  laws  of  those  states  and  the  lex  loci  contractus." 

In  McDaniel  v.  Chicago  &  Northwestern  Railway,  24  Iowa, 
412,  417,  cattle  transported  by  a  railroad  company  from  a  place 
in  Iowa  to  a  place  in  Illinois,  under  a  special  contract  made  in 
Iowa,  containing  a  stipulation  that  the  company  sho.uld  be  ex- 
empt from  liability  for  any  damage,  unless  resulting  from  colli- 
sion or  derailing  of  trains,  were  injured  in  Illinois  by  the  negli- 
gence of  the  company's  servants  ;  and  the  Supreme  Court  of  Iowa, 
Chief  Justice  Dillon  presiding,  held  the  case  to  be  governed  by 
the  law  of  Iowa,  which  permitted  no  common  carrier  to  exempt 
himself  from  the  liability  which  would  exist  in  the  absence  of 
the  contract.  The  court  said :  "The  contract  being  entire  and 
indivisible,  made  in  Iowa,  and  to  be  partly  performed  here,  it 
must,  as  to  its  validity,  nature,  obligation  and  interpretation,  be 
governed  by  our  law.  And  by  our  law,  so  far  as  it  seeks  to  change 
the  common  law,  it  is  wholly  nugatory  and  inoperative.  The 
rights  of  the  parties,  then,  are  to  be  determined  under  the  common 
law,  the  same  as  if  no  such  contract  had  been  made." 

So  in  Pennsylvania  Co.  v.  Fairchild.  69  Illinois,  260,  where 
a  railroad  company  received  in  Indiana  goods  consigned  to  Leav- 
enworth, in  Kansas,  and  carried  them  to  Chicago  in  Illinois,  and 
there  delivered  them  to  another  railroad  company,  in  whose  cus- 
tody they  were  destroyed  by  fire,  the  Supreme  Court  of  Illinois 
held  that  the  case  must  be  governed  by  the  law  of  Indiana,  by 
which  the  first  company  was  not  liable  for  the  loss  of  the  goods 
after  they  passed  into  the  custody  of  the  next  carrier  in  the  line 
of  transit. 

The  other  cases  in  the  courts  of  the  several  states,  cited  at 
the  bar,  afford  no  certain  or  satisfactory  guide.  Two  cases,  held 
not  to  be  governed  by  a  statute  of  Pennsylvania  providing  that 


CONTRACTS.  487 

no  railroad  corporation  should  be  liable  for  a  loss  of  passenger's 
baggage  beyond  $300,  unless  the  excess  in  value  was  disclosed  and 
paid  for,  were  decided  (whether  rightly  or  not  we  need  not  con- 
sider) without  much  reference  to  authority,  and  upon  their  pe- 
culiar circumstances — the  one  case,  on  the  ground  that  a  contract 
by  a  New  Jersey  corporation  to  carry  a  passenger  and  his  bag- 
gage from  a  wharf  in  Philadelphia  across  the  Delaware  River, 
in  which  the  States  of  Pennsylvania  and  New  Jersey  had  equal 
rights  of  navigation  and  passage,  and  thence  through  the  State 
of  New  Jersey  to  Atlantic  City,  was  a  contract  to  be  performed 
in  Xew  Jersey  and  governed  by  the  law  of  that  state ;  Brozvn  v. 
Camden  &  Atlantic  Railroad,  83  Penn.  St.  316;  and  the  other 
case,  on  the  ground  that  the  baggage,  received  at  a  town  in  Penn- 
sylvania to  be  carried  to  New  York  city,  having  been  lost  after  its 
arrival  by  negligence  on  the  part  of  the  railroad  company,  the 
contract,  so  far  as  concerned  the  delivery,  was  to  be  governed  by 
the  law  of  New  York.  Curtis  v.  Delaware  &  Lackazvanna  Rail- 
road, 74  N.  Y.  116.  The  suggestion  in  Barter  v.  Wheeler,  49 
N.  H.  9,  29,  that  the  question,  whether  the  liability  of  a  railroad 
corporation  for  goods  transported  through  parts  of  two  states 
was  that  of  a  common  carrier  or  of  a  forwarder  only,  should  be 
governed  by  the  law  of  the  state  in  which  the  loss  happened,  was 
not  necessary  to  the  decision,  and  appears  to  be  based  on  a  strained 
inference  from  the  observations  of  Mr.  Justice  Story  in  Pope  v. 
Nickerson,  above  cited.  In  a  later  case,  the  Supreme  Court  of 
New  Hampshire  reserved  any  expression  of  opinion  upon  a  like 
question.     Gray  v.  Jackson,  51  N.  H.  9,  39. 

This  review  of  the  principal  cases  demonstrates  that  accord- 
ing to  the  great  preponderance,  if  not  the  uniform  concurrence, 
of  authority,  the  general  rule,  that  the  nature,  the  obligation  and 
the  interpretation  of  a  contract  are  to  be  governed  by  the  law  of 
the  place  where  it  is  made,  unless  the  parties  at  the  time  of  making 
it  have  some  other  law  in  view,  requires  a  contract  of  affreight- 
ment, made  in  one  country  between  citizens  or  residents  thereof, 
and  the  performance  of  which  begins  there,  to  be  governed  by 
the  law  of  that  country,  unless  the  parties,  when  entering  into  the 


488  PRIVATE    INTERNATIONAL  LAW. 

contract,  clearly  manifest  a  mutual  intention  that  it  shall  be  gov- 
erned by  the  law  of  some  other  country. 

There  does  not  appear  to  us  to  be  anything  in  either  of  the  bills 
of  lading  in  the  present  case,  tending  to  show  that  the  contracting 
parties  looked  to  the  law  of  England,  or  to  any  other  law  than 
that  of  the  place  where  the  contract  was  made. 

The  bill  of  lading  for  the  bacon  and  hams  was  made  and 
dated  at  New  York,  and  signed  by  the  ship's  agent  there.  It  ac- 
knowledges that  the  goods  have  been  shipped  "in  and  upon  the 
steamship  called  Montana,  now  lying  in  the  port  of  New  York 
and  bound  for  the  port  of  Liverpool,"  and  are  to  be  delivered  at 
Liverpool.  It  contains  no  indication  that  the  owners  of  the  steam- 
ship are  English,  or  that  their  principal  place  of  business  is  in 
England,  rather  than  in  this  country.  On  the  contrary,  the  only 
description  of  the  line  of  steamships,  or  of  the  place  of  business 
of  their  owners,  is  in  a  memorandum  in  the  margin,  as  follows: 
"Guion  Line.  United  States  Mail  Steamers.  Xew  York :  29 
Broadway.  Liverpool:  11  Rumford  St."  No  distinction  is  made 
between  the  places  of  business  at  New  York  and  at  Liverpool, 
except  that  the  former  is  named  first.  The  reservation  of  liberty, 
in  case  of  an  interruption  of  the  voyage,  "to  tranship  the  goods 
by  any  other  steamer,"  would  permit  transhipment  into  a  vessel 
of  any  other  line,  English  or  American.  And  general  average  is 
to  be  computed,  not  by  any  local  law  or  usage,  but  "according  to 
York-Antwerp  rules,"  which  are  the  rules  drawn  up  in  1864  at 
York  in  England,  and  adopted  in  1877  at  Antwerp  in  Belgium, 
at  international  conferences  of  representatives  of  the  more  im- 
portant mercantile  associations  of  the  United  States,  as  well  as 
of  the  maritime  countries  of  Europe.  Lowndes  on  General  Aver- 
age (3d  ed.)  Appendix  Q. 

The  contract  being  made  at  New  York,  the  ship-owner  hav- 
ing a  place  of  business  there,  and  the  shipper  being  an  American, 
both  parties  must  be  presumed  to  have  submitted  themselves  to 
the  law  there  prevailing,  and  to  have  agreed  to  its  action  upon 
their  contract.  The  contract  is  a  single  one,  and  its  principal  ob- 
ject, the  transportation  of  the  goods,  is  one  continuous  act,  to  be- 
gin in  the  port  of  New  York,  to  be  chiefly  performed  on  the  high 


CONTRACTS.  489 

seas,  and  to  end  at  the  port  of  Liverpool.  The  facts  that  the 
goods  are  to  be  delivered  at  Liverpool,  and  the  freight  and  pri- 
mage, therefore,  payable  there  in  sterling  currency,  do  not  make 
the  contract  an  English  contract,  or  refer  to  the  English  law  the 
question  of  the  liability  of  the  carrier  for  the  negligence  of  the 
master  and  crew  in  the  course  of  the  voyage.  Peninsular  & 
Oriental  Co.  v.  Shand,  Lloyd  v.  Guibert,  and  Chartered  Bank  of 
India  v.  Netherlands  Steam  Navigation  Co.,  before  cited. 

There  is  even  less  ground  for  holding  the  three  bills  of  lading 
of  the  cotton  to  be  English  contracts.  Each  of  them  is  made  and 
dated  at  Nashville,  an  inland  city,  and  is  a  through  bill  of  lading, 
over  the  Louisville  and  Nashville  Railroad  and  its  connections, 
and  by  the  Williams  and  Guion  Steamship  Company,  from  Nash- 
ville to  Liverpool ;  and  the  whole  freight  from  Nashville  to  Liver- 
pool is  to  be  "at  the  rate  of  fifty-four  pence  sterling  per  ioo  lbs. 
gross  weight."  It  is  stipulated  that  the  liability  of  the  Louisville 
and  Nashville  Railroad  and  its  connections  as  common  carriers 
"terminates  on  delivery  of  the  goods  or  property  to  the  steamship 
company  at  New  York,  when  the  liability  of  the  steamship  com- 
mences, and  not  before ;"  and  that  "the  property  shall  be  trans- 
ported from  the  port  of  New  York  to  the  port  of  Liverpool  by  the 
said  steamship  company,  with  liberty  to  ship  by  any  other  steam- 
ship or  steamship  line."  And  in  the  margin  is  this  significant  ref- 
erence to  a  provision  of  the  statutes  of  the  United  States,  applica- 
ble to  the  ocean  transportation  only:  "Attention  of  shippers 
is  called  to  the  act  of  Congress  of  1851 :  'Any  person  or  per- 
sons shipping  oil  of  vitriol,  unslacked  lime,  inflammable  matches 
[or]  gunpowder,  in  a  ship  or  vessel  taking  cargo  for  divers  per- 
sons on  freight,  without  delivering  at  the  time  of  shipment  a  note 
in  writing,  expressing  the  nature  and  character  of  such  merchan- 
dise, to  the  master,  mate  or  officer,  or  person  in  charge  of  the  load- 
ing of  the  ship  or  vessel,  shall  forfeit  to  the  United  States  One 
Thousand  Dollars/"  Act  of  March  3,  185 1,  c.  43,  §  7;  9  Stat. 
636 ;  Rev.  Stat.  §  4288. 

It  was  argued  that  as  each  bill  of  lading,  drawn  up  and 
signed  by  the  carrier  and  assented  to  by  the  shipper,  contained  a 
stipulation  that  the  carrier  should  not  be  liable  for  losses  by  perils 


490  PRIVATE    INTERNATIONAL  LAW. 

of  the  sea  arising  from  the  negligence  of  its  servants,  both  parties 
must  be  presumed  to  have  intended  to  be  bound  by  that  stipula- 
tion, and  must  therefore,  the  stipulation  being  void  by  our  law 
and  valid  by  the  law  of  England,  have  intended  that  their  contract 
should  be  governed  by  the  English  law;  and  one  passage  in  the 
judgment  in  Peninsular  &  Oriental  Co.  v.  Shand  gives  some  color 
to  the  argument.  3  Moore  P.  C.  (N.  S.)  291.  But  the  facts  of 
the  two  cases  are  quite  different  in  this  respect.  In  that  case, 
effect  was  given  to  the  law  of  England,  where  the  contract  »as 
made;  and  both  parties  were  English,  and  must  be  held  to  have 
known  the  law  of  their  own  country.  In  this  case,  the  contract 
was  made  in  this  country,  between  parties  one  residing  and  the 
other  doing  business  here ;  and  the  law  of  England  is  a  foreign 
law,  which  the  American  shipper  is  not  presumed  to  know.  Both 
parties  or  either  of  them  may  have  supposed  the  stipulation  to  be 
valid ;  or  both  or  either  may  have  known  that  by  our  law,  as  de- 
clared by  this  court,  it  was  void.  In  either  aspect,  there  is  no 
ground  for  inferring  that  the  shipper,  at  least,  had  any  intention, 
for  the  purpose  of  securing  its  validity,  to  be  governed  by  a  for- 
eign law,  which  he  is  not  shown,  and  cannot  be  presumed,  to  have 
had  any  knowledge  of. 

Our  conclusion  on  the  principal  question  in  the  case  may  be 
summed  up  thus :  Each  of  the  bills  of  lading  is  an  American  and 
not  an  English  contract,  and,  so  far  as  concerns  the  obligation  to 
carry  the  goods  in  safety,  is  to  be  governed  by  the  American  law, 
and  not  by  the  law,  municipal  or  maritime,  of  any  other  country. 
By  our  law,  as  declared  by  this  court,  the  stipulation  by  which  the 
appellant  undertook  to  exempt  itself  from  liability  for  the  negli- 
gence of  its  servants  is  contrary  to  public  policy  and  therefore 
void ;  and  the  loss  of  the  goods  was  a  breach  of  the  contract,  for 
which  the  shipper  might  maintain  a  suit  against  the  carrier.  This 
being  so,  the  fact  that  the  place  where  the  vessel  went  ashore,  in 
consequence  of  the  negligence  of  the  master  and  officers  in  the 
prosecution  of  the  voyage,  was  upon  the  coast  of  Great  Britain, 
is  quite  immaterial. 

This  conclusion  is  in  accordance  with  the  decision  of  Judge 
Brown  in  the  District  Court  of  the  United  States  for  the  South- 


CONTRACTS.  491 

ern  District  of  New  York  in  The  Brantford  City,  29  Fed.  Rep. 
373,  which  appears  to  us  to  proceed  upon  more  satisfactory 
grounds  than  the  opposing  decision  of  Mr.  Justice  Chitty,  sitting 
alone  in  the  Chancery  Division,  made  since  this  case  was  argued, 
and,  so  far  as  we  are  informed,  not  reported  in  the  Law  Reports, 
nor  affirmed  or  considered  by  any  of  the  higher  courts  of  Great 
Britain.     In  re  Missouri  Steamship  Co.,  58  Law  Times  (N.  S.) 

377- 

The  present  case  does  not  require  us  to  determine  what  effect 
the  courts  of  the  United  States  should  give  to  this  cqpitract,  if  it 
had  expressly  provided  that  any  question  arising  under  it  should 
be  governed  by  the  law  of  England. 

The  question  of  the  subrogation  of  the  libellant  to  the  rights 
of  the  shippers  against  the  carrier  presents  no  serious  difficulty. 

From  the  very  nature  of  the  contract  of  insurance  as  a  con- 
tract of  indemnity,  the  insurer,  upon  paying  to  the  assured  the 
amount  of  a  loss,  total  or  partial,  of  the  goods  insured,  becomes, 
without  any  formal  assignment,  or  any  express  stipulation  to  that 
effect  in  the  policy,  subrogated  in  a  corresponding  amount  to  the 
assured's  right  of  action  against  the  carrier  or  other  person  re- 
sponsible for  the  loss ;  and  in  a  court  of  admiralty  may  assert  in 
his  own  name  that  right  of  the  shipper.  The  Potomac,  105  U.  S. 
630,  634;  Phoenix  Ins.  Co.  v.  Erie  Transportation  Co.,  117  U.  S. 
312,321. 

In  the  present  case,  the  libellant,  before  the  filing  of  the  libel, 
paid  to  each  of  the  shippers  the  greater  part  of  his  insurance,  and 
thereby  became  entitled  to  recover  so  much,  at  least,  from  the  car- 
rier. The  rest  of  the  insurance  money  was  paid  by  the  libellant 
before  the  argument  in  the  District  Court,  and  that  amount  might 
have  been  claimed  by  amendment,  if  not  under  the  original  libel. 
The  Charles  Morgan,  115  U.  S.  69,  75;  The  Gazelle,  128  U.  S. 
474.  The  question  of  the  right  of  the  libellant  to  recover  to  the 
whole  extent  of  the  insurance  so  paid  was  litigated  and  included 
in  the  decree  in  the  District  Court,  and  in  the  Circuit  Court  on 
appeal :  and  no  objection  was  made  in  either  of  those  courts,  or 
at  the  argument  in  this  court,  to  any  insufficiency  of  the  libel  in 
this  particular. 


492  PRIVATE   INTERNATIONAL   LAW. 

The  appellant  does,  however,  object  that  the  decree  should 
not  include  the  amount  of  the  loss  on  the  cotton  shipped  under 
through  bills  of  lading  from  Nashville  to  Liverpool.  This  objec- 
tion is  grounded  on  a  clause  in  those  bills  of  lading,  which  is  not 
found  in  the  bill  of  lading  of  the  bacon  and  hams  shipped  at  New 
York;  and  on  the  adjudication  in  Phoenix  Ins.  Co.  v.  Erie  Trans- 
portation Co.,  117  U.  S.  312,  that  a  stipulation  in  a  bill  of  lading, 
that  a  carrier,  when  liable  for  a  loss  of  the  goods,  shall  have  the 
benefit  of  any  insurance  that  may  have  been  effected  upon  them, 
is  valid  as  between  the  carrier  and  the  shipper,  and  therefore  limits 
the  right  of  an  insurer  of  the  goods,  upon  paying  to  the  shipper  the 
amount  of  a  loss  by  stranding,  occasioned  by  the  negligence  of  the 
carrier's  servants,  to  recover  over  against  the  carrier. 

But  it  behooves  a  carrier  setting  up  such  a  defence  to  show 
clearly  that  the  insurance  on  the  goods  is  one  which  by  the  terms 
of  his  contract  he  is  entitled  to  the  benefit  of.  Inman  v.  South 
Carolina  Raikvay,  ante,  128.  The  through  bills  of  lading  of  the 
cotton  are  signed  by  an  agent  of  the  railroad  companies  and  the 
steamship  company,  ''severally,  but  not  jointly,"  and  contain,  in 
separate  columns,  two  entirely  distinct  sets  of  "terms  and  condi- 
tions," the  first  relating  exclusively  to  the  land  carriage  by  the 
railroads  and  their  connections,  and  the  second  to  the  ocean  trans- 
portation by  the  steamship.  The  clause  relied  on,  providing  that 
in  case  of  any  loss  or  damage  of  the  goods,  whereby  any  legal 
liability  shall  be  incurred,  that  company  only  shall  be  held  answer- 
able in  whose  actual  custody  the  goods  are  at  the  time,  and  the 
carrier  so  liable  shall  have  the  full  benefit  of  any  insurance  that 
may  have  been  effected  upon  or  on  account  of  said  goods,"  is  in- 
serted in  the  midst  of  the  terms  and  conditions  defining  the  lia- 
bility of  the  railroad  companies,  and  is  omitted  in  those  defining 
the  liability  of  the  steamship  company,  plainly  signifying  an  in- 
tention that  this  clause  should  not  apply  to  the  latter.  It  is  quite 
clear,  therefore,  that  the  appellant  has  no  right  to  claim  the  benefit 
of  any  insurance  on  the  goods.  See  Railroad  Co.  v.  Androscog- 
gin Mills,  22  Wall.  594,  602. 

The  result  of  these  considerations  is  that  the  decree  of  the 

Circuit  Court  is  in  all  respects  correct  and  must  be 

Affirmed. 


STATUTE    OF    FRAUDS.  493 

STATUTE  OF  FRAUDS. 

LEROUX  v.  BROWN,  74  ENG.  COM.  LAW  800,  (1852). 
Assumpsit.  The  declaration  stated,  that,  on  the  ist  of  De- 
cember, 1849,  at  Calais,  in  France,  to  wit,  at  Westminster,  in  the 
county  of  Middlesex,  in  consideration  that  the  plaintiff,  at  the  re- 
quest of  the  defendant,  then  agreed  with  the  defendant  to  enter 
into  the  service  of  the  defendant  as  clerk  and  agent,  and  to  serve 
the  defendant  in  that  capacity  for  one  year  certain,  at  certain 
wages,  to  wit,  100/.  a  year,  to  be  paid  by  the  defendant  to  the 
plaintiff  by  equal  quarterly  payments  during  his  continuance  in 
such  service,  the  defendant  then  promised  the  plaintiff  to  receive 
him  into  his  said  service,  and  to  retain  and  employ  him  in  his  said 
service,  at  the  wages  aforesaid :  Averment  that  the  plaintiff,  con- 
fiding in  the  promise  of  the  defendant,  was  then,  and  from  thence 
continually  had  been,  ready  and  willing  to  enter  into  the  service 
of  the  defendant  as  aforesaid,  and  to  serve  the  defendant,  for  the 
wages  aforesaid:  Breach,  that,  though  the  plaintiff  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  requested  the  defendant  to 
receive  the  plaintiff  into  the  service  of  the  defendant  as  aforesaid, 
and  to  retain  and  employ  him  in  such  service,  at  the  wages  afore- 
said; yet  the  defendant,  not  regarding  his  promise,  did  not,  nor 
would,  at  the  time  he  was  so  requested  as  aforesaid,  or  at  any  other 
time,  receive  the  plaintiff  into  his  service  as  aforesaid,  or  retain 
or  employ  him,  at  such  wages  as  aforesaid,  or  in  any  other  way, 
but  wholly  neglected  and  refused  so  to  do ;  whereby  the  plaintiff 
not  only  lost  and  was  deprived  of  all  the  profits  and  emoluments 
which  might  and  would  otherwise  have  arisen  and  accrued  to  him 
from  entering  into  the  service  of  the  defendant,  but  also  lost  and 
was  deprived  of  the  means  and  opportunity  of  being  retained  and 
employed  by  and  in  the  service  of  divers  other  persons,  and  re- 
mained wholly  out  of  service  and  unemployed  for  a  long  time,  to 
wit,  for  the  year  then  next  following,  and  was  and  is  otherwise 
greatly  injured,  &c. 

Pleas, — first,  non  assumpsit, — secondly,  that  the  plaintiff  was 
not  ready  and  willing  to  enter  into  the  service  of  the  defendant, 
and  to  serve  him  the  defendant,  for  the  wages  in  the  declaration 


494  PRIVATE   INTERNATIONAL   LAW. 

mentioned,  in  manner  and  form  as  in  the  declaration  was  alleged, 
— thirdly,  that  the  plaintiff  did  not  request  the  defendant  to  re- 
ceive him,  the  plaintiff,  into  the  service  of  him,  the  defendant,  or 
to  retain  or  employ  him,  the  plaintiff,  in  such  service,  at  the  wages 
in  the  declaration  mentioned,  in  manner  and  form  as  the  plaintiff 
had  above  in  the  declaration  alleged. 

Upon  each  of  these  pleas  issue  was  joined. 

The  cause  was  tried  before  Talfourd,  J.,  at  the  second  sitting 
in  Middlesex,  in  Trinity  Term  last.  It  appeared  that  an  oral 
agreement  had  been  entered  into  at  Calais,  between  the  plaintiff 
and  the  defendant,  under  which  the  latter,  who  resided  in  Eng- 
land, contracted  to  employ  the  former,  who  was  a  British  subject 
resident  at  Calais,  at  a  salary  of  ioo/.  per  annum,  to  collect  poul- 
try and  eggs  in  that  neighborhood,  for  transmission  to  the  defend- 
ant here, — the  employment  to  commence  at  a  future  day,  and  to 
continue  for  one  year  certain. 

Evidence  was  given  on  the  part  of  the  plaintiff  to  show,  that, 
by  the  law  of  France,  such  an  agreement  is  capable  of  being  en- 
forced, although  not  in  writing. 

For  the  defendant,  it  was  insisted,  that,  notwithstanding  the 
contract  was  made  in  France,  when  it  was  sought  to  enforce  it  in 
this  country,  it  must  be  dealt  with  according  to  our  law;  and, 
being  a  contract  not  to  be  performed  within  a  year,  the  statute  of 
frauds,  29  Car.  2,  c.  3,  s.  4,  required  it  to  be  in  writing. 

Under  the  direction  of  the  learned  judge,  a  verdict  was  en- 
tered for  the  plaintiff  on  the  first  issue, — leave  being  reserved  to 
the  defendant  to  move  to  enter  a  nonsuit  or  a  verdict  for  him  on 
that  issue,  if  the  court  should  be  of  opinion  that  the  contract  could 
not  be  enforced  here. 

Jervis,  C.  J. — I  am  of  opinion  that  the  rule  to  enter  a  nonsuit 
must  be  made  absolute.  There  is  no  dispute  as  to  the  principle^ 
which  ought  to  govern  our  decision.  My  Brother  Allen  admits, 
that,  if  the  4th  section  of  the  statute  of  frauds  applies,  not  to  the 
validity  of  the  contract,  but  only  to  the  procedure,  the  plaintiff 
cannot  maintain  this  action,  because  there  is  no  agreement,  nor 
any  memorandum  or  note  thereof,  in  writing.  On  the  other 
hand,  it  is  not  denied   by  Mr.  Honyman, — who  has    argued  this 


STATUTE    OF    FRAUDS.  495 

case  in  a  manner  for  which  the  court  is  much  indebted  to  him, — 
that,  if  the  4th  section  applies  to  the  contract  itself,  or,  as  Boulle- 
nois  expresses  it,  to  the  solemnities  of  the  contract,  inasmuch  as 
our  law  cannot  regulate  foreign  contracts,  a  contract  like  this 
may  be  enforced  here.  I  am  of  opinion  that  the  4th  section  ap- 
plies not  to  the  solemnities  of  the  contract,  but  to  the  procedure ; 
and  therefore  that  the  contract  in  question  cannot  be  sued  upon 
here.  The  contract  may  be  capable  of  being  enforced  in  the 
country  where  it  was  made :  but  not  in  England.  Looking  at  the 
words  of  the  4th  section  of  the  statute  of  frauds,  and  contrasting 
them  with  those  of  the  1st,  3d,  and  17th  sections,  this  conclusion 
seems  to  me  to  be  inevitable.  The  words  of  s.  4  are,  "no  action 
shall  be  brought  upon  any  agreement  which  is  not  to  be  performed 
within  the  space  of  one  year  from  tue  making  thereof,  unless  the 
agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  thereto 
by  him  lawfully  authorized."  The  statute,  in  this  part  of  it,  does 
not  say,  that,  unless  those  requisites  are  complied  with,  the  con- 
tract shall  be  void,  but  merely  that  no  action  shall  be  brought 
upon  it:  and,  as  was  put  with  great  force  by  Mr.  Honyman,  the 
alternative,  "unless  the  agreement,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing," — words  which  are  satisfied  if  there 
be  any  written  evidence  of  a  previous  agreement, — shows  that  the 
statute  contemplated  that  the  agreement  may  be  good,  though  not 
capable  of  being  enforced  if  not  evidenced  by  writing.  This 
therefore  may  be  a  very  good  agreement  though,  for  want  of  a 
compliance  with  the  requisites  of  the  statute,  not  enforceable  in 
an  English  court  of  justice.  This  view  seems  to  be  supported  by 
the  authorities ;  because,  unless  we  are  to  infer  that  the  courts 
thought  the  agreement  itself  good,  though  not  made  in  strict  com- 
pliance with  the  statute,  they  could  not  consistently  have  held, 
as  was  held  in  the  cases  referred  to  by  Sir  Edward  Sugden,  that 
a  writing  subsequent  to  the  contract,  and  addressed  to  a  third  per- 
son, was  sufficient  evidence  of  an  agreement,  within  the  statute. 
It  seems,  therefore,  that  both  authority  and  practice  are  consistent 
witn  the  words  of  the  4th  section.     The  cases  of  Carrington  v. 


496  PRIVATE   INTERNATIONAL   LAW. 

Roots,  and  Reade  v.  Lamb,  however,  have  been  pressed  upon  us 
as  being  inconsistent  with  this  view.  It  is  sufficient  to  say  that  the 
attention  of  the  learned  judges  by  whom  those  cases  were  decided, 
was  not  invited  to  the  particular  point  now  in  question.  What 
they  were  considering  was,  whether,  for  the  purposes  of  those  ac- 
tions, there  was  any  substantial  difference  between  the 4th  and  17th 
sections.  It  must  be  borne  in  mind  that  the  meaning  of  those  sec- 
tions has  been  the  subject  of  discussion  on  other  occasions.  In 
Crosby  v.  Wadsworth,  6  East,  602,  Lord  Ellenborough,  speaking 
of  the  4th  section  says, — "The  statute  does  not  expresslv  and  im- 
mediately vacate  such  contracts,  if  made  by  parol:  it  only  pre- 
cludes the  bringing  of  actions  to  enforce  them."  Again,  in  Lay- 
thoarp  v.  Bryant,  2  N.  C.  735,  3  Scott,  238,  Tindal,  C.  J.,  and 
Bosanquet,  J.,  say  distinctly  that  the  contract  is  good,  and  that  the 
statute  merely  takes  away  the  remedy,  where  there  is  no  memor- 
andum or  note  in  writing.  I  therefore  think  we  are  correct  in 
holding  that  the  contract  in  this  case  is  incapable  of  being  enforced 
by  an  action  in  this  country,  because  the  4th  section  of  the  29  Car.  2, 
c.  3,  relates  only  to  the  procedure,  and  not  to  the  right  and  valid- 
ity of  the  contract  itself.  As  to  what  is  said  by  Boullenois  in  the 
passage  last  cited  by  Brother  Allen,  it  is  to  be  observed  that  the 
learned  author  is  there  speaking  of  what  pertains  ad  vinculum 
obligationis  et  solemnitatem,  and  not  with  reference  to  the  mode 
of  procedure.  Upon  these  grounds,  I  am  of  opinion  that  this  ac- 
tion cannot  be  maintained,  and  that  the  rule  to  enter  a  nonsuit 
must  be  made  absolute. 

Maule  J. — I  am  of  the  same  opinion.  The  4th  section  of  the 
statute  of  frauds  enacts  that  "no  action  shall  be  brought  upon  any 
agreement  which  is  not  to  be  performed  within  the  space  of  one 
year  from  the  making  thereof,  unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memorandum  or  note  there- 
of, shall  be  in  writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereto  by  him  lawfully  author- 
ized." Now,  this  is  an  action  brought  upon  a  contract  which  was 
not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof,  and  there  is  no  memorandum  or  note  thereof  in  writing 
signed  by  the  defendant  or  any  lawfully  authorized  agent.     The 


STATUTE    OF    FRAUDS.  497 

case,  therefore,  plainly  falls  within  the  distinct  words  of  the  stat- 
ute. It  is  said  that  the  4th  section  is  not  applicable  to  this  case, 
because  the  contract  was  made  in  France.  This  particular  section 
does  not  in  terms  say  that  no  such  contract  as  before  stated  shall 
be  of  any  force;  it  says,  no  action  shall  be  brought  upon  it.  In 
their  literal  sense,  these  words  mean  that  no  action  shall  be 
brought  upon  such  an  agreement  in  any  court  in  which  the  British 
legislature  has  power  to  direct  what  shall  and  what  shall  not  be 
done ;  in  terms,  therefore,  it  applies  to  something  which  is  to  take 
place  where  the  law  of  England  prevails.  But  we  have  been 
pressed  with  cases  which  it  is  said  have  decided  that  the  words 
"no  action  shall  be  brought"  in  the  4th  section,  are  equivalent  to 
the  words  "no  contract  shall  be  allowed  to  be  good'"  which  are 
found  in  another  part  of  the  statute.  Suppose  it  had  been  so  held, 
as  a  general  and  universal  proposition,  still  I  apprehend  it  would 
not  be  a  legitimate  mode  of  construing  the  4th  section,  to  substi- 
tute the  equivalent  words  for  those  actually  used.  What  we  have 
to  construe,  is,  not  the  equivalent  words,  but  the  words  we  find 
there.  If  the  substituted  words  import  the  same  thing,  the  substi- 
tution is  unnecessary  and  idle :  and,  if  those  words  are  susceptible 
of  a  different  construction  from  those  actually  used,  that  is  a  rea- 
son for  dealing  with  the  latter  only.  It  may  be,  that,  for  some  pur- 
poses, the  words  used  in  the  4th  and  17th  sections  may  be  equiva- 
lent ;  but  they  clearly  are  not  so  in  Ihe  case  now  before  us ;  for, 
there  is  nothing  to  prevent  this  contract  from  being  enforced  in  a 
French  court  of  law.  Dealing  with  the  words  of  the  4th  section 
as  we  are  bound  to  deal  with  all  words  that  are  plain  and  unam- 
biguous, all  we  say,  is,  that  they  pronibit  the  courts  of  this  country 
from  enforcing  a  contract  made  under  circumstances  like  the  pres- 
ent,— just  as  we  hold  a  contract  incapable  of  being  enforced, 
where  it  appears  upon  the  record  to  have  been  made  more  than  six 
years.  It  is  parcel  of  the  procedure,  and  not  of  the  formality  of 
the  contract.  None  of  the  authorities  which  have  been  referred 
to  seem  to  me  to  be  at  all  at  variance  with  the  conclusion  at  which 
we  have  arrived. 

Talford,  J. — I  am  of  the  same  opinion.     The  argument  of 
Mr.  Honyman  seems  to  me  to  be  quite  unanswerable.    That  drawn 


498  PRIVATE    INTERNATIONAL   LAW. 

from  Laythoarp  v.  Bryant  and  that  class  of  cases  in  which  it  has 
been  held  that  the  4th  section  of  the  statute  of  frauds  is  satisfied 
by  a  subsequent  letter  addressed  to  a  third  party,  containing  evi- 
dence of  the  terms  of  the  contract,  shows  clearly  that  that  section 
has  reference  to  procedure  only,  and  not  to  what  are  called  by  the 
jurists  the  rights  and  solemnities  of  the  contract.    Rule  absolute. 


TORTS. 
DENNICK  v.  RAILROAD  CO.,  103  U.  S.  11,  (1880). 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  New  York. 

The  plaintiff  brought  suit  in  a  State  Court  of  New  York 
against  the  Central  Railroad  Company  of  New  Jersey,  to  recover 
damages  for  the  death  of  her  husband  by  an  accident  on  the  de- 
fendant's road.  The  company  entered  an  appearance  and  removed 
the  case  into  the  Circuit  Court  of  the  United  States,  on  the  ground 
that  the  plaintiff  was  a  citizen  of  New  York  and  the  defendant  a 
corporation  of  New  Jersey.  The  complaint  filed  in  the  Circuit 
Court  alleges  that  the  plaintiff  was  his  widow,  and  her  children 
were  his  next  of  kin ;  that  she  was  administratrix  of  his  estate,  ap- 
pointed by  the  proper  court  in  New  York ;  and  that  his  death  was 
caused  by  the  negligence  of  the  defendant.  Damages  in  the  sum 
of  $15,000  were  claimed. 

The  answer  denied  the  negligence,  but  admitted  that  the  death 
was  caused  by  the  train  running  off  the  track  in  New  Jersey,  that 
there  were  a  widow  and  next  of  kin,  and  that  the  plaintiff  had  been 
appointed  administratrix  by  the  surrogate  of  Albany  County, 
New  York. 

The  parties  waived  a  jury.  The  plaintiff  introduced  evidence 
tending  to  prove  the  negligence  charged,  whereupon  the  court 
ruled  that  for  the  death  of  her  husband,  which  occurred  in  the 
State  of  New  Jersey,  she  could  not,  under  the  special  statute  of 
that  State,  recover  in  the  action.  Judgment  was  rendered  for  the 
defendant.     The  plaintiff  then  sued  out  this  writ  of  error. 

Mr.  Justice  Miller,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 


TORTS.  499 

It  is  understood  that  the  decision  of  the  court  below  rested 
solely  upon  the  proposition  that  the  liability  in  a  civil  action  for 
damages  which,  under  he  statute  of  New  Jersey,  is  imposed  upon 
a  party,  by  whose  wrongful  act,  neglect,  or  default  death  ensues, 
can  be  enforced  by  no  one  but  an  administrator,  or  other  personal 
representative  of  the  deceased,  appointed  by  the  authority  of  that 
State.  And  the  soundness  or  unsoundness  of  this  proposition  is 
what  we  are  called  upon  to  decide. 

It  must  be  taken  as  established  by  the  record  that  the  acci- 
dent by  which  the  plaintiff's  husband  came  to  his  death  occurred 
in  New  Jersey,  under  circumstances  which  brought  the  defendant 
within  the  provisions  of  the  first  section  of  the  act  making  the 
company  liable  for  damages,  notwithstanding  the  death. 

It  can  scarcely  be  contended  that  the  act  belongs  to  the  class 
of  criminal  laws  which  can  only  be  enforced  by  the  courts  of  the 
State  where  the  offence  was  committed,  for  it  is,  though  a  stat- 
utory remedy,  a  civil  action  to  recover  damages  for  a  civil  injury. 

It  is  indeed  a  right  dependent  solely  on  the  statute  of  the 
State ;  but  when  the  act  is  done  for  which  the  law  says  the  per- 
son shall  be  liable,  and  the  action  by  which  the  remedy  is  to  be 
enforced  is  a  personal  and  not  a  real  action,  and  is  of  that  charac- 
ter which  the  law  recognizes  as  transitory  and  not  local,  we  cannot 
see  why  the  defendant  may  not  be  held  liable  in  any  court  to 
whose  jurisdiction  he  can  be  subjected  by  personal  process  or  by 
voluntary  appearance,  as  was  the  case  here. 

It  is  difficult  to  understand  how  the  nature  of  the  remedy,  or 
the  jurisdiction  of  the  courts  to  enforce  it,  is  in  any  manner  de- 
pendent on  the  question,  whether  it  is  a  statutory  right  or  a  com- 
mon-law right. 

Wherever  by  either  the  common  law  or  the  statute  law  of  a 
State,  a  right  of  action  has  become  fixed  and  a  legal  liability  in- 
curred, that  liability  may  be  enforced  and  the  right  of  action  pur- 
sued in  any  court  which  has  jurisdiction  of  such  matters  and  can 
obtain  jurisdiction  of  the  parties. 

The  action  in  the  present  case  is  in  the  nature  of  trespass  to 
the  person,  always  held  to  be  transitory,  and  the  venue  immater- 
ial.   The  local  court  in  New  York  and  the  Circuit  Court  of  the 


500  PRIVATE    INTERNATIONAL   LAW. 

United  States  for  the  Northern  District  were  competent  to  try- 
such  a  case  when  the  parties  were  properly  before  it.  Mostyn  v. 
Fabrigas,  i  Cowp.  161 ;  Rafael  v.  Verelst,  2  W.  Bl.  983,  1055 ;  Mc- 
Kenna  v.  Fisk,  1  How.  241.  We  do  not  see  how  the  fact  that  it 
was  a  statutory  right  can  vary  the  principle.  A  party  legally  liable 
in  New  Jersey  cannot  escape  that  liability  by  going  to  New  York. 
If  the  liability  to  pay  money  was  fixed  by  the  law  of  the  State 
where  the  transaction  occurred,  is  it  to  be  said  it  can  be  enforced 
nowhere  else  because  it  depended  upon  statute  law  and  not  upon 
common  law  ?  It  would  be  a  very  dangerous  doctrine  to  establish, 
that  in  all  cases  where  the  several  States  have  substituted  the  stat- 
ute for  the  common  law,  the  liability  can  be  enforced  in  no  other 
State  but  that  where  the  statute  was  enacted  and  the  transaction 
occurred.  The  common  law  never  prevailed  in  Louisiana,  and  the 
rights  and  remedies  of  her  citizens  depend  upon  her  civil  code. 
Can  these  rights  be  enforced  or  the  wrongs  of  her  citizens  be  re- 
dressed in  no  other  State  of  the  Union?  The  contrary  has  been 
held  in  many  cases.  See  Ex  Parte  Van  Riper,  20  Wend.  (N.  Y.) 
614 ;  Lowry  v.  Inman,  46  N.  Y.  119;  Pickering  v.  Fisk,  6  Vt.  102 ; 
Railroad  v.  Sprayberry,  8  Bax.  (Tenn.)  341 ;  Great  Western  Rail- 
way Co.  v.  Miller,  19  Mich.  305. 

But  it  is  said  that,  conceding  that  the  statute  of  the  State  of 
New  Jersey  established  the  liability  of  the  defendant  and  gave 
a  remedy,  the  right  of  action  is  limited  to  a  personal  representative 
appointed  in  that  State  and  amenable  to  its  jurisdiction. 

The  statute  does  not  say  this  in  terms.  "Every  such  action 
shall  be  brought  by  and  in  the  names  of  the  personal  representa- 
tives of  such  deceased  person."  It  may  be  admitted  that  for  the 
purpose  of  this  case  the  words  "personal  representatives"  mean 
the  administrator. 

The  plaintiff  is  .then,  the  only  personal  representative  of  the 
deceased  in  existence,  and  the  construction  thus  given  the  statute 
is,  that  such  a  suit  shall  not  be  brought  by  her.  This  is  in  direct 
contradiction  of  the  words  of  the  statute.  The  advocates  of  this 
view  interpolate  into  the  statute  what  is  not  there,  by  holding  that 
the  personal  representative  must  be  one  residing  in  the  State  or 
appointed  by  its  authority.    The  statute  says  the  amount  recovered 


TORTS.  501 

shall  be  for  the  exclusive  benefit  of  the  widow  and  next  of  kin. 
Why  not  add  here,  also,  by  construction,  "if  they  reside  in  the 
State  of  New  Jersey"? 

It  is  obvious  that  nothing  in  the  language  of  the  statute  re- 
quires such  a  construction.  Indeed,  by  inference,  it  is  opposed  to 
it.  The  first  section  makes  the  liability  of  the  corporation  or  per- 
son absolute  where  the  death  arises  from  their  negligence.  Who 
shall  say  that  it  depends  on  the  appointment  of  an  administrator 
within  the  State  ? 

The  second  section  relates  to  the  remedy,  and  declares  who 
shall  receive  the  damages  when  recovered.  These  are  the  widow 
and  next  of  kin.  Thus  far  the  statute  declares  under  what  circum- 
stances a  defendant  shall  be  liable  for  damages,  and  to  whom  they 
shall  be  paid.  In  this  there  is  no  ambiguity.  But  fearing  that 
there  might  be  a  question  as  to  the  proper  person  to  sue,  the  act 
removes  any  doubt  by  designating  the  personal  representative. 
The  plaintiff  here  is  that  representative.  Why  can  she  not  sus- 
tain the  action?  Let  it  be  remembered  that  this  is  not  a  case  of 
an  administrator,  appointed  in  one  State,  suing  in  that  character 
in  the  courts  of  another  State,  without  any  authority  from  the  lat- 
ter.   It  is  the  general  rule  that  this  cannot  be  done. 

The  suit  here  was  brought  by  the  administratrix  in  a  court 
of  the  State  which  had  appointed  her,  and  of  course  no  such  objec- 
tion could  be  made. 

If.  then,  the  defendant  was  liable  to  be  sued  in  the  courts  of 
the  State  of  Xew  York  on  this  cause  of  action,  and  the  suit  could 
only  be  brought  by  such  personal  representative  of  the  deceased, 
and  if  the  plaintiff  is  the  personal  representative,  whom  the  courts 
of  that  State  are  bound  to  recognize,  on  what  principle  can  her 
right  to  maintain  the  action  be  denied  ? 

So  far  as  any  reason  has  been  given  for  such  a  proposition,  it 
seems  to  be  this :  that  the  foreign  administrator  is  not  responsible 
to  the  courts  of  Xew  Jersey,  and  cannot  be  compelled  to  distribute 
the  amount  received  in  accordance  with  the  New  Jersey  statute. 

But  the  courts  of  Xew  York  are  as  capable  of  enforcing  the 
rights  of  the  widow  and  next  of  kin  as  the  courts  of  New  Jersey. 


502  PRIVATE    INTERNATIONAL  LAW. 

And  as  the  court  which  renders  the  judgment  for  damages  in  fa- 
vor of  the  administratrix  can  only  do  so  by  virtue  of  the  New  Jer- 
sey statute,  so  any  court  having  control  of  her  can  compel  distribu- 
tion of  the  amount  received  in  the  manner  prescribed  by  that 
statute. 

Again :  it  is  said  that,  by  virtue  of  her  appointment  in  New 
York,  the  administratrix  can  only  act  upon  or  administer  that 
which  was  of  the  estate  of  the  deceased  in  his  lifetime.  There  can 
be  no  doubt  that  much  that  comes  to  the  hands  of  administrators 
or  executors  must  go  directly  to  heirs  or  devisees,  and  is  not  sub- 
ject to  sale  or  distribution  in  any  other  mode,  such  as  specific  prop- 
erty devised  to  individuals,  or  the  amount  which  by  the  legislation 
of  most  of  the  States  is  set  apart  to  the  family  of  the  deceased, 
all  of  which  can  be  enforced  in  the  courts ;  and  no  reason  is  per- 
ceived why  the  specific  direction  of  the  law  on  this  subject  may 
not  invest  the  administrator  with  the  right  to  receive  or  recover 
by  suit,  and  impose  on  him  the  duty  of  distributing  under  that  law. 
There  can  be  no  doubt  that  an  administrator,  clothed  with  the  ap- 
parent right  to  receive  or  recover  by  suit  property  or  money,  may 
be  compelled  to  deliver  or  pay  it  over  to  some  one  who  establishes 
a  better  right  thereto,  or  that  what  he  so  recovers  is  held  in  trust 
for  some  one  not  claiming  under  him  or  under  the  will.  And  so 
here.  The  statute  of  New  Jersey  savs  the  personal  representative 
shall  recover,  and  the  recovery  shall  be  for  the  benefit  of  the  widow 
and  next  of  kin.  It  would  be  a  reproach  to  the  laws  of  New  York 
to  say  that  when  the  money  recovered  in  such  an  action  as  this 
came  to  the  hands  of  the  administratrix,  her  courts  could  not  com- 
pel distribution  as  the  law  directs. 

It  is  to  be  said,  however,  that  a  statute  of  New  York,  just  like 
the  New  Jersey  law,  provides  for  bringing  the  action  by  the  per- 
sonal representative,  and  for  distribution  to  the  same  parties,  and 
that  an  administrator  appointed  under  the  law  of  that  State  would 
be  held  to  have  recovered  to  the  same  uses,  and  subject  to  the 
remedies  in  his  fiduciary  character  which  both  statutes  prescribe. 

We  are  aware  that  Woodzvard  v.  Michigan  Southern  & 
Northern  Indiana  Railroad  Co.  (10  Ohio  St.  121)  asserts  a  differ- 


PROCEDURE.  503 

ent  doctrine,  and  that  it  has  been  followed  by  Richardson  v.  New 
York  Central  Railroad  Co.,  98  Mass.  85,  and  McCarthy  v.  Chi- 
cago, Rock  Island,  &  Pacific  Railroad  Co.,  18  Kan.  46.  The  rea- 
sons which  support  that  view  we  have  endeavored  to  show  are  not 
sound.  These  cases  are  opposed  by  the  latest  decision  on  the  sub- 
ject in  the  Court  of  x\ppeals  of  New  York,  in  the  case  of  Leonard, 
Administrator,  v.  The  Columbia  Steam  Navigation  Co.,  not  yet 
reported,  but  of  which  we  have  been  furnished  with  a  certified 
copy. 

The  right  to  recover  for  an  injury  to  the  person,  resulting  in 
death,  is  of  very  recent  origin,  and  depends  wholly  upon  statutes 
of  the  different  States.  The  questions  growing  out  of  these  stat- 
utes are  new,  and  many  of  them  unsettled.  Each  State  court  will 
construe  its  own  statute  on  the  subject,  and  differences  are  to  be 
expected.  In  the  absence  of  any  controlling  authority  or  general 
concurrence  of  decision,  this  court  must  decide  for  itself  the  ques- 
tion now  for  the  first  time  presented  to  it,  and  with  every  respect 
for  the  courts  which  have  held  otherwise,  we  think  that  sound 
principle  clearly  authorizes  the  administrator  in  cases  like  this  to 
maintain  the  action. 

Judgment  reversed  with  directions  to  azvard  a  new  trial. 


PROCEDURE. 
DICEY  CONFLICT  OF  LAWS,  CHAP.  31.* 

All  matters  of  procedure  are  governed  wholly  by  the  local  or 
territorial  law  of  the  country  to  which  a  Court  wherein  an  action 
is  brought  or  other  legal  proceeding  is  taken  belongs  (lex  fori). 

In  this  Digest  the  term  "procedure"  is  to  be  taken  in  its  widest 
sense,  and  includes  (inter  alia)  — 

( 1 )  remedies  and  process  ; 

(2)  evidence: 

(3)  limitation  of  an  action  or  other  proceeding; 

(4)  set-off  or  counter-claim. 

*  This  chapter  is  inserted  by  permission  of  the  American  Pub- 
lisher of  "Dicey  on  the  Conflict  of  Laws." 


504  PRIVATE   INTERNATIONAL   LAW. 

COMMENT. 

The  principle  that  procedure  is  governed  by  the  lex  fori  is  of 
general  application  and  universally  admitted,  but  the  Courts  of 
any  country  can  apply  it  only  to  proceedings  which  take  place  in, 
or  at  any  rate  under  the  law  of,  that  country.  In  a  body  of  Rules, 
therefore,  such  as  those  contained  in  this  Digest,  which  state  the 
principles  enforced  by  an  English  Court,  the  maxim  that  proce- 
dure is  governed  by  the  lex  fori  means  in  effect  that  it  is  governed 
by  the  ordinary  law  of  England,  without  any  reference  to  any  for- 
eign law  whatever.  The  maxim  is  in  fact  a  negative  rule ;  it  lays 
down  that  the  High  Court,  in  common,  it  may  be  added,  with  every 
other  English  Court,  pursues  its  ordinary  practice  and  adheres  to 
its  ordinary  methods  of  investigation  whatever  be  the  character 
of  the  parties,  or  the  nature  of  the  cause  which  is  brought  be- 
fore it. 

"A  person,"  it  has  been  said,  "suing  in  this  country,  must  take 
"the  law  as  he  finds  it ;  he  cannot,  by  virtue  of  any  regulation  in 
"his  own  country,  enjoy  greater  advantages  than  other  suitors 
"here,  and  he  ought  not  therefore  to  be  deprived  of  any  superior 
"advantage  which  the  law  of  this  country  may  confer.  He  is  to 
"have  the  same  rights  which  all  the  subjects  of  this  kingdom  are 
"entitled  to,"  and  the  foreign  defendant,  it  may  be  added,  is  to 
have  the  advantages,  if  any,  which  the  form  of  procedure  in  this 
country  gives  to  every  defendant. 

Whilst,  however,  it  is  certain  that  all  matters  which  concern 
procedure  are  in  an  English  Court  governed  by  the  law  of  Eng- 
land, it  is  equally  clear  that  everything  which  goes  to  the  substance 
of  a  party's  rights  and  does  not  concern  procedure  is  governed  by 
the  law  appropriate  to  the  case. 

"The  law  on  this  point  is  well  settled  in  this  country,  where 
"this  distinction  is  properly  taken,  that  whatever  relates  to  the 
"remedy  to  be  enforced  must  be  determined  by  the  lex  fori, — the 
"law  of  the  country  to  the  tribunals  of  which  the  appeal  is  made," 
but  that  whatever  relates  to  the  rights  of  the  parties  must  be  de- 
termined by  the  proper  law  of  the  contract  or  other  transaction 
on  which  their  rights  depend. 

Our  Rule  is  clear  and  well  established.     The  difficulty  of  its 


PROCEDURE.  505 

application  to  a  given  case  lies  in  discriminating  between  matters 
which  belong  to  procedure  and  matters  which  affect  the  substan- 
tive rights  of  the  parties.  In  the  determination  of  this  question 
two  considerations  must  be  borne  in  mind : — 

First.  English  lawyers  give  the  widest  possible  extension  to 
the  meaning  of  the  term  "procedure."  The  expression,  as  inter- 
preted by  our  judges,  includes  all  legal  remedies,  and  everything 
connected  with  the  enforcement  of  a  right.  It  covers,  therefore, 
the  whole  field  of  practice ;  it  includes  the  whole  law  of  evidence, 
as  well  as  every  rule  in  respect  of  the  limitation  of  an  action  or  of 
any  other  legal  proceeding  for  the  enforcement  of  a  right,  and 
hence  it  further  includes  the  methods,  e.  g.,  seizure  of  goods  or 
arrest  of  person,  by  which  a  judgment  may  be  enforced. 

Secondly.  Any  rule  of  law  which  solely  affects,  not  the  en- 
forcement of  a  right  but  the  nature  of  the  right  itself,  does  not 
come  under  the  head  of  procedure.  Thus,  if  the  law  which  gov- 
erns, e.  g.,  the  making  of  a  contract,  renders  the  contract  absolutely 
void,  this  is  not  a  matter  of  procedure,  for  it  affects  the  rights  of 
the  parties  to  the  contract,  and  not  the  remedy  for  the  enforcement 
of  such  rights. 

Hence  any  rule  limiting  the  time  within  which  an  action  may 
be  brought,  any  limitation  in  the  strict  sense  of  that  word,  is  a  mat- 
ter of  procedure  governed  wholly  by  the  lex  fori.  But  a  rule 
which  after  the  lapse  of  a  certain  time  extinguishes  a  right  of  ac- 
tion— a  rule  of  prescription  in  the  strict  sense  of  that  word — is  not 
a  matter  of  procedure,  but  a  matter  which  touches  a  person's  sub- 
stantive rights,  and  is  therefore  governed,  not  by  the  lex  fori, 
but  by  the  law,  whatever  it  may  be,  which  governs  the  right  in 
question.  Thus  if,  in  an  action  for  a  debt  incurred  in  France,  the 
defence  is  raised  that  the  action  is  barred  under  French  law  by 
lapse  of  time,  or  that  for  want  of  some  formality  an  action  could 
not  be  brought  for  the  debt  in  a  French  Court,  the  validity  of  the 
defence  depends  upon  the  real  nature  of  the  French  law  relied 
upon.  If  that  law  merely  takes  away  the  plaintiff's  remedy,  it  has 
no  effect  in  England.  If,  on  the  other  hand,  the  French  law 
extinguishes  the  plaintiff's  right  to  be  paid  the  debt,  it  affords  a 
complete  defence  to  an  action  in  England. 


506  PRIVATE   INTERNATIONAL   LAW. 

To  this  it  must  be  added  that  an  English  statutory  enactment, 
which  affects  both  a  person's  rights  and  the  method  of  its  enforce- 
ment, establishes  a  rule  of  procedure  and  therefore  applies  to  an 
action  in  respect  of  a  right  acquired  under  foreign  law.  Hence  the 
4th  Section  of  the  Statute  of  Frauds,  and  the  4th  Section  of  the 
Sale  of  Goods  Act,  1893,  which,  whether  affecting  rights  or  not, 
certainly  affect  procedure,  apply  to  actions  on  contracts  made  in  a 
foreign  country  and  governed  by  foreign  law.  Whence  the  con- 
clusion follows  that  a  contract  though  made  abroad,  which  does 
not  satisfy  the  provisions  of  the  4th  section  of  the  Statute  of 
Frauds,  or  of  the  Sale  of  Goods  Act,  1893,  respectively,  cannot  be 
enforced  in  England. 

With  regard  to  the  Illustrations  to  this  Rule  it  must  always 
be  borne  in  mind  that,  as  we  are  dealing  with  proceedings  before 
an  English  Court,  the  lex  fori  is  the  same  thing  as  the  law  of  Eng- 
land. 

ILLUSTRATIONS. 

(1)  Remedies  and  Process. 

1.  A  brings  an  action  against  X  to  obtain  specific  perform- 
ance of  a  contract  made  between  A  and  X  in  and  subject  to  the  law 
of  a  foreign  country.  The  contract  is  one  of  which  A  might,  ac- 
cording to  the  law  of  that  country  (lex  loci  contractus) ,  obtain 
specific  performance,  but  it  is  not  one  for  which  specific  perform- 
ance can  be  granted  according  to  the  law  of  England  (lex  fori). 
A  cannot  maintain  an  action  for  specific  performance. 

2.  A  brings  an  action  against  X  for  breach  of  a  contract 
made  with  X  in  Scotland  as  a  member  of  a  Scotch  firm.  Accord- 
ing to  the  law  of  Scotland  (lex  loci  contractus) ,  A  could  not  main- 
tain an  action  against  X  until  he  had  sued  the  firm,  which  he  has 
not  done.  According  to  the  law  of  England  (lex  fori),  the  right 
to  bring  an  action  against  the  member  of  a  firm  does  not  depend 
upon  the  firm  having  been  first  sued.  A  can  maintain  an  action 
against  X. 

3.  A,  a  Portuguese,  at  a  time  when  arrest  of  a  debtor  on 
mesne  process  is  allowable  under  the  law  of  England  (lex  fori), 
but  is  not  allowable   under  the   law  of    Portugal    (lex  loci  con- 


PROCEDURE.  507 

tractus),  brings  an  action  against  X,  a  Portuguese,  for  a  debt  con- 
tracted in  Portugal.     A  has  a  right  to  arrest  X. 

4.  A  in  Spain  sells  X  goods  of  the  value  of  £50.  The  con- 
tract is  made  by  word  of  mouth,  and  there  is  no  memorandum  of  it 
in  writing.  The  contract  is  valid  and  enforceable  according  to 
Spanish  law  (lex  loci  contractus) .  A  contract  of  this  description 
is,  under  the  Sale  of  Goods  Act,  1893,  s.  4  (lex  fori),  not  enforce- 
able by  action.     A  cannot  maintain  an  action  against  X  for  refusal 

to  accept  the  goods. 

(2)  Evidence. 

5.  A  brings  an  action  against  X  to  recover  a  debt  incurred 
by  X  in  and  under  the  law  of  a  foreign  country  (lex  loci  con- 
tractus). A  tenders  evidence  of  the  debt  which  is  admissible  by 
the  law  of  the  foreign  country,  but  is  inadmissible  by  the  law  of 
England  (lex  fori).     The  evidence  is  inadmissible. 

6.  A  brings  an  action  against  X,  an  Englishman,  for  breach 
of  a  promise  of  marriage  made  by  X  to  A,  a  German  woman,  at 
Constantinople.  A  has  not  such  corroborative  evidence  as  is  re- 
quired by  32  &  33  Vict.  cap.  68,  s.  2  (lex  fori).  A  cannot  prove 
the  promise  or  maintain  the  action. 

7.  A,  a  Frenchman,  makes  a  contract  in  France  with  X,  an 
Englishman,  to  serve  him  in  France  from  a  future  date  for  a  year 
certain.  The  contract  is  made  by  word  of  mouth,  and  there  is  no 
memorandum  of  it  in  writing.  It  is  a  contract  valid  by  the  law  of 
France  (lex  loci  contractus),  for  the  breach  of  which  an  action 
might  be  brought  in  a  French  Court,  but  under  the  4th  section  of 
the  Satute  of  Frauds  no  action  can  be  brought  on  such  an  agree- 
ment unless  there  is  a  memorandum  thereof  in  writing.  The 
enactment  applies  to  procedure.  A  cannot  maintain  an  action 
in  England  against  X  for  breach  of  the  contract. 

(3)  Limitation. 

8.  X  contracts  a  debt  to  A  in  Scotland.  The  recovery  of  the 
debt  is  not  barred  by  lapse  of  time,  according  to  Scotch  law  (lex 
loci  contractus),  but  it  is  barred  by  the  English  Limitation  Act, 
1623,  21  Jac.  I.  cap.  16  (lex  fori).  A  cannot  maintain  an  action 
against  X. 


508  PRIVATE   INTERNATIONAL   LAW. 

9.  X  incurs  a  debt  to  A  m  France.  The  recovery  of  such  a 
debt  is  barred  by  the  French  law  of  limitation  (lex  loci  contrac- 
tus), but  is  not  barred  by  any  English  Statute  of  Limitation.  A 
can  maintain  an  action  for  the  debt  against  A". 

10.  A  in  a.  Manx  Court  brings  an  action  against  X  for  a  debt 
incurred  by  X  to  A  in  the  Isle  of  Man.  The  action,  not  being 
brought  within  three  years  from  the  time  when  the  cause  of  action 
arose,  is  barred  by  Manx  law,  and  judgment  is  on  that  account 
given  in  favor  of  X.  A  then,  within  six  years  from  the  time  when 
the  debt  is  incurred,  brings  an  action  against  X  in  England.  This 
action  is  not  barred  by  the  English  Limitation  Act,  1623  (lex  fori). 
A  can  maintain  his  action  against  X. 

11.  X,  under  a  bond  made  in  India,  is  bound  to  repay  A 
£100.  Specialty  debts  have,  under  the  law  of  India  (lex  loci  con- 
tractus), no  higher  legal  value  than  simple  contract  debts,  and 
under  that  law  the  remedy  for  both  is  barred  by  the  lapse  of  three 
years.  The  period  of  limitation  for  actions  on  specialty  debts  is, 
under  the  law  of  England, — 3  &  4  Will.  IV.  cap.  42,  s.  3,  (lex 
fori), — twenty  years.  A,  ten  years  after  the  execution  of  the 
bond,  brings  an  action  in  England  upon  it  against  X.  A  can  main- 
tain the  action. 

(4)  Set-off. 

12.  X  in  1855  contracts  in  Prussia  with  A  for  the  carriage  by 
A  of  goods  by  sea  from  Memel  to  London.  A  brings  an  action 
against  X  for  the  freight,  and  X  under  Prussian  law  (lex  loci  con- 
tractus), claims  to  set  off  money,  due  to  him  by  way  of  damages 
from  A,  which  could  not  at  that  date  be  made,  according  to  the 
rules  of  English  procedure  (lex  fori),  the  subject  either  of  a  set- 
off or  a  counter-claim.  X  is  not  allowed  to  set  off,  against  the 
money  due  to  A,  the  damages  due  from  A  to  X. 

Lex  Fori  not  Applicable. 

13.  A  brings  an  action  on  a  contract  made  by  word  of  mouth 
between  X  and  A  in  and  under  the  law  of  a  foreign  country.  It 
is  a  kind  of  contract  which  under  the  law  of  England  (lex  fori)  is 
valid  though  not  made  in  writing,  but  under  the  law  of  the  foreign 
country  (lex  loci  contractus)  is  void  if  not  made   in  writing.     A 


PROCEDURE.  509 

cannot  maintain  his  action,  i.  e.,  the  validity  of  the  contract  is  gov- 
erned in  England,  not  by  the  lex  fori,  but  by  the  lex  loci  con- 
tractus. 

14.  A  brings  an  action  against  X  for  breach  of  a  contract 
made  in  a  foreign  country.  It  is  proved  that  under  the  law  of  that 
country  {lex  loci  contractus)  the  contract  for  want  of  a  stamp  is 
unenforceable.  If  the  want  of  the  stamp  merely  deprives  A  of  his 
remedy  in  the  foreign  country,  then  he  can  maintain  an  action  in 
England  for  breach  of  the  contract,  i.  e.,  the  want  of  the  stamp 
merely  affects  procedure  which  is  governed  by  the  lex  fori.  If  the 
want  of  the  stamp  makes  the  contract  void  ab  inito,  then  A  cannot 
maintain  an  action  in  England,  i.  e.,  the  want  of  a  stamp  affects  a 
matter  of  right  and  is  governed  by  the  lex  loci  contractus. 

15.  X  commits  an  assault  upon  A  in  Jamaica.  For  some 
time  after  the  assault  is  committed,  A  might,  had  X  been  in  Eng- 
land, have  maintained  an  action  for  it  there  against  X.  Before  X 
returns  to  England  the  legislature  of  Jamaica  passes  an  Act  where- 
by X  is  in  respect  of  the  assault  acquitted  and  indemnified  against 
the  Queen  and  all  other  persons,  and  the  assault  is  declared  to  be 
lawful.  X  then  returns  to  England,  and  A  brings  an  action 
against  X  for  the  assault.  A  cannot  maintain  the  action,  i.  e.,  the 
character  of  the  act  done  by  X,  or  A's  right  to  treat  it  as  a  wrong, 
is  governed,  not  by  the  lex  fori,  but  by  the  lex  loci  delicti  com- 
missi. 


INDEX. 


ACCOUNTING: 

form  of,  governed  by  what  law,  280. 

ACKNOWLEDGMENT : 

sufficiency  of,  to  legitimate,  239,  240  et  seq. 

ACTIONS: 

jurisdiction  of  transitory,  133. 

for  injuries  committed  abroad,  133.  137,  138,  139,  140. 

for  crimes  committed  abroad,  137-140,  160. 

for  tresspass  to  real  property,  where  brought,  149,  150. 

ACTS : 

in  uncivilized  countries,  54-57. 

as  evidence  of  domicil,  102. 

liability  for,  when  committed  abroad,  172,  173,  174-180. 

what,  sufficient  to  change  domicil,  84. 

ADMINISTRATION : 

governed  by  what  law,  291-294,  306-309. 
where  taken  out,  293. 

ADMINISTRATORS : 

effect  of  payment  to  foreign,  293. 
relation  of,  of  different  states,  298. 
public,  powers  of,  301-304  et  seq 

ADOPTION: 

distinguished  from  "legitimation,"  223. 

AFFREIGHTMENT: 

contract  of,  by  what  law  governed,  228. 

AGENCY : 

power  of  alien  enemies  to  create,  114. 

ALIENS: 

rights  of,  113-116. 

goods  of,  captured  in  war,  1 17-132. 

right  of,  to  apply  to  our  courts,  134-137. 

ALIEN  ENEMIES: 

powers  and  disabilities  of,  111-132. 
goods  of,  captured  in  war,  1 17-132. 

ALLEGIANCE : 

distinguished  from  "domicil."  33,  34,  40-43.  63. 
native,  as  governing  reverter  of  domicil,  63. 

ANGLO-INDIAN  DOMICIL:       (See  Domicil). 
meaning  of,  48,  52,  53. 

ANIMUS  MANENDI : 

as  determining  domicil,  124. 

as  fixing  national  character,  124. 


ii  INDEX. 

ANTE-NUPTIAL  AGREEMENT : 

extra  territorial  effect  of,  181-187. 

effect  on  movable  and  immovable  property,  184,  185,  186,  187. 

effect  on  present  or  after-acquired  property,  185,  187. 

APPOINTMENTS : 

power  of  alien  enemies  to  make,  114. 

APPRENTICES : 

domicil  of,  80-81. 

ASSIGNMENT: 

governed  by  what  law,  417,-420. 

ATTACHMENT : 

what  law  governs,  420-447. 

ATTORNEY: 

power  of  alien  enemy  to  appoint,  114. 

AUTHORITY : 

of  alien  enemy,  to  appoint  attorney,  114. 

BILLS  OF  EXCHANGE : 

governed  by  what  law,  18. 

BILLS  OF  LADING : 

what  law  governs,  465  et  seq. 

BOTTOMRY  CONTRACTS : 

governed  by  what  law,  288. 
BRITISH  SHIPS: 

torts  committed  on,  where  triable,  134. 

BRITISH  SUBJECTS: 
domicil  of,  52. 
property  of,  seized  in  war,  1 17-132. 

CAPACITY : 

of  alien  enemies  to  carry  on  business,  111-132. 

CHATTELS  PERSONAL:     (See  Personal  Property), 
where  taxable,  87  et  seq. 
as  governed  by  comity,  90. 

CHILDREN : 

status  of,  29,  38-43. 

domicil  of,  73-76. 

domicil  of  legitimate,  23-43. 

domicil  of  illegitimate,  23-43,  224,  228. 

CHOICE: 

domicil  of,  23-43. 

CHOICE  OF  LAW: 
need  of,  9,  10. 

CITIZENSHIP: 

as  determining  domicil,  63. 
how  acquired,  104- no. 
acquired  by  marriage,   105- no. 
residence,  as  an  essential  of,  108-110. 
who  has  power  to  regulate,  104-110. 

COLLISION  OF  LAW:  13.     (See  Private  International  Law). 

COMITY : 

meaning  of  the  term,  10,  n-15,  312,  313. 

as  affecting  personal  property,  90. 

to  what  extent  applied,  in  cases  of  guardianship,  264,  265. 


INDEX.  Ill 

COMMERCE: 

power  of  Congress  over,  90. 

COMMERCIAL  DOMICIL : 

what  is,  64-70. 

person's  character  determined  by,  64,  65. 

nature  of,  65. 

resemblance  to  civil  domicil,  66. 

differences  between  civil  and  commercial,  66-70. 

need  not  coincide  with  civil,  70. 
CONFLICT  OF  LAWS:     (See  Private  International  Law.) 

objections  to  this  term,  13. 

CONSTRUCTION : 

liberal,  meaning  of,  239. 

CONTRACT: 

in  uncivilized  countries,  54,  55. 

governed  by  what  law,  167-176,  288,  447-492. 

marriage  as  a,  201,  202. 

of  affreightment,  governed  by  what  law,  288. 

CORPORATIONS : 

property  of,  where  taxed,  90,  91-93. 

power  of  foreign,  to  take  real  or  personal  property,  368,  369,  370- 

385. 
where  foreign,  may  be  sued,  386-399. 

COURT  : 

as  guardian  of  orphan  children,  263. 

CRIMES: 

jurisdiction  over,  when  committed  abroad.  146,  147,  148. 
what  are,  144,  145,  148. 

DEBTS : 

situs  of,  440-447. 

DECLARATIONS : 

as  evidence  of  domicil,  103. 

DEPENDENT  PERSONS: 

domicil  of,  71-80,  81-87. 

DIVORCE : 

state  jurisdiction  over,  190,  191,  192. 
extra-territorial  effect  of,  188-208. 
domicil,  as  determining  jurisdiction  over,  193-208. 
jurisdiction  over  the  subject  matter  of,  195  et  seq. 
jurisdiction,  as  to  the  parties,  195-208. 

DOMICIL : 

origin  of  the  term,  51. 

definition  of,  21,  44. 

requisites  of,  21,  45,  84. 

intention  as  an  element  of,  22,  30,  45,  46,  84. 

to  effect  a  change  of.  22,  23,  31,  33-48. 

voting  as  evidence  of,  22,  86. 

kinds  of,  30,  39,  43. 

of  origin,  23-39-43. 

of  choice,  23-39-43. 

power  to  change.  32. 

of  legitimate  children,  23-43. 

of  illegitimate  children,  23-43,  224,  228. 

singleness  of,  35,  39,  51,  52,  63,  64. 


iv  INDEX. 

DOMICIL— (Continued)  : 

how  acquired,  35"43- 

how  lost,  35-43- 

abandonment  of,  36-43- 

evidence  of,  37,  98-103. 

presumption  as  to,  45. 

reverter  of,  32,  35,  36,  57-64- 

of  Origin  distinguished  from  choice,  34"43- 

of  married  women,  71-73. 

of  infants,  73-76,  279. 

for  purposes  of  taxation,  87  et  seq. 

in  uncivilized  countries,  54-57. 

plurality  of,  35.  51,  63,  64. 

allegiance  as  determining,  63. 

commercial,  64-70. 

law  of  determines  disposition  of  property,  20-23,  61-64. 

time,  as  an  element  of  determining,  26-36. 

of  insane  persons,  76-79. 

of  paupers  and  convicts,  76-79. 

of  Apprentices,  80-81. 

of  Servants,  80-81. 

of  Sailors..  81-84. 

of  Students,  85-87. 

acts  as  evidence  of,  102,  103. 

as  governing  Prize  cases.  122-132. 

of  officers,  40. 

of  persons  fleeing  from  creditors,  40. 

of  invalids,  40. 

as  giving  jurisdiction  in  divorce,  192,  193-208. 

when  wife  may  chose,  72,  73,  208  et  seq. 

what  act  is  sufficient  to  change,  84. 

how  fa/,  law  of,  governs  powers  of  guardians,  254,  255,  264,  265. 

278,  279. 
as  governing  personal  property,  278. 

EVIDENCE: 

what  kind  of,  determines  domicil,  102,  103. 

EXPATRIATION : 

right  of,  104-110. 

EX-TERRITORIAL  EFFECT  OF  LAWS:     15.     (See  Private  Interna- 
tional Law). 

EX-TERRITORIAL  OPERATION  OF  LAWS:    5.   (See  Private  Inter- 
national Law). 

EX-TERRITORIAL  RECOGNITION  OF  RIGHTS:     5,  15.     (See  Pri- 
vate International  Law). 

FAMILY  : 

what  constitutes,  241,  242. 

FOREIGN  JUDGMENTS : 

extra-territorial  effect  of,  207-208. 
conclusiveness  of,  218. 

FOREIGN  MARRIAGE: 

extra-territorial  effect  of,  177-180. 
property  rights  under,  181 -187. 
validity  of,  170-180. 

FORM  : 

of  accounting  governed  by  what  law,  280. 


INDEX.  V 

GUARDIANS : 

powers  of  foreign,  253-255,  274. 

control  of,  over  ward,  254,  255,  262,  263,  264,  265. 

control  of,  over  wards'  estate,  255,  265,  274. 

testamentary,  powers  of,  263,  264.  265,  280. 

war,  as  affecting  duties  of,  273. 

duties  of.  273-286. 

liability  of,  274-286. 

power  to  invest  ward's  property.  274.  275,  276-286,  289. 

natural,  power  of,  280,  281. 

difference  between,  and  trustee,  281. 

HABITANCY:     (See  Domicil). 

HIGH  SEAS: 

ships  upon,  where  taxable,  91,  92. 

HOME:     (See  Domicil). 

IMMOVABLES: 

what  law  governs,  399-402. 

INDEPENDENT  PERSONS: 
domicil  of,  80,  81. 

INFANTS : 

domicil  of,  73-76. 

guardians  of,  253-255,  262,  263-265. 

power  of,  to  change  domicil,  279. 

INSANE  PERSONS: 

domicil  of,  76,  77,  78,  79. 

INTENTION : 

as  an  element  of  domicil,  22,  30,  45,  46,  84,  224,  228. 

INTER-MUNICIPAL  LAW:       15.     (See  Private  International  Law). 

INTERNATIONAL  LAW: 

as  part  of  the  general  law,  17-19. 

foundation  of,  17,  18. 

as  governing  mercantile  questions,  18. 

enforcement  of,  18,  19. 

derivation  of,  39. 

defined,  311,  312. 

INTERNATIONAL  PRIVATE  LAW:     15.     (See  Private  International 
Law ) . 

JUDICIAL  NOTICE: 

Courts  of  United  States  bound  to  take,  of  what  laws,  291. 
JUDGMENTS : 

extra-territorial  effect  of,  207-208,  310-366,  315-366. 

how  far  conclusive.  218,  315-366. 

in  rem,  how  far  binding,  297,  315-366. 

in  personam,  how  far  binding,  297,  310-366. 

effect  of  foreign,  in  different  countries,  353-366. 

JURISDICTION: 

rule  of,  with  reference  to  validity  or  dissolution  of  marriage,  99. 

over  torts,  committed  abroad,  133-135. 

over  penal  laws,  140-165. 

of  state,  over  marriage  and  divorce.  191-208. 


LAW 


meaning  of,  3-7. 

"territorial"  and  "extra-territorial"  distinguished,  3-5. 

of  England,  meaning  of,  6,  7. 


VI  INDEX. 

LAW  OF  NATIONS : 
definition  of,  17. 
scope  of.  18,  19. 

as  part  of  the  law  of  the  land.  18. 
as  governing  mercantile  questions,  18. 
as  governing  prize  cases,  1 17-132. 

LEGACY  DUTY : 

where  payable,  46-54. 

LEGISLATURE: 

power  of,  90,  225. 

legitimation  as  the  creature  of,  237,  238. 

LEGITIMACY : 

marriage  of  parents  as  a  method  of,  220-240  et  seq. 
what  constitutes,  241-252. 

LEGITIMATION: 

"adoption"  distinguished  from.  223. 

by  subsequent  marriage  of  parents,  224,  229,  et  seq. 

by  decree  of  foreign  sovereign,  235.       v 

what  amounts  to,  241-252. 

what  acknowledgment,  a  sufficient.  239,  240  et  seq. 

LEX  DOMICILII  : 

as  governing  marriage,  215. 

LEX  FORI  • 

how  far  not  applicable,  508,  509. 

LEX  LOCI  CONTRACTUS : 

as  governing  marriage,  215. 

LEX  SITUS : 

of  personal  property,  90,  97. 

LICENSE : 

implied,  in  case  of  aliens,  113. 

LOCAL  LIMITS  OF  LAW:     15.     (See  Private  International  Law). 

LOCALITY  OF  PROPERTY : 

for  purposes  of  taxation,  97,  98. 

LUNATICS: 

domicil  of,  76-79. 

MARRIAGE: 

effect  of,  as  to  legitimation,  28,  29-43. 

in  uncivilized  countries,  55. 

as  a  means  of  naturalization,  104-110. 

status  of,  165-176. 

validity  of,  determined  by  what  law,  168,  169. 

prohibition  of,  determined  by  what  law,  168,  169. 

validity  of  when  celebrated  abroad,  177-180. 

extra-territorial  effect  of.  177-180. 

as  a  status,  202-203. 

naturalization  by,  225. 

MARRIAGE  SETTLEMENT : 

Extra-territorial  effect  of,  181-187. 
effect  on  property,  184-187. 

MARRIED  WOMEN : 
domicil  of  71-73. 
when  capable  of  choosing  separate  domicil,  72,  73,  208  et  seq.  279. 


INDEX.  Vll 

MINORS: 

status  of,  29,  38-43. 

domicil  of,  73-76. 

domicil  of  legitimate,  23-43. 

domicil  of  illegitimate,  23-43,  224.  228- 

MOVABLES : 

alienation  of,  in  uncivilized  countries,  56. 

as  governed  by  owner's  domicil,  90,  91. 

origin  of  the  rule,  that  movables  follow  the  owner's  domicil,  90. 

where  taxable.  97-98. 

what  law  governs,  402-416  et  seq. 

NATION: 

distinguished  from  "state,"  16,  17. 

NATIONAL  DOMICIL:       (See  Domicil). 
what  is,  63. 

NATIONALITY : 

rules  governing,  104-132. 

as  conferred  by  marriage,  225. 

NATURALIZATION : 

distinguished  from  domicil,  33,  34,  40-43. 
who  has  power  to  regulate,  104-132. 
marriage  as  a  method  of,  225. 

NEUTRALS : 

property  of,  123-132. 

NOTICE : 

what  sufficient,  to  give  jurisdiction  over  divorce  proceedings,  209. 
NULLITY  OF  MARRIAGE: 

determined  by  what  law,  167-169,  216,  217. 

PENAL  LAWS : 

what  are,  140-165. 

PEOPLE : 

distinguished  from  "nation,"  16,  17. 

PERSONAL  PROPERTY : 
where  taxable,  97,  98. 
as  governed  by  comity,  90. 
governed  by  what  law,  278,  305,  402-416  et  seq. 

POWER  OF  ATTORNEY : 

Power  of  alien  to  give,  114. 

PRIVATE  INTERNATIONAL  LAW : 
accuracy  of  expression,  13. 
definition  of,  3,  5,  311,  312. 
illustration  of,  1,  2. 
meaning  of  term,  3-6. 
nature  of  subject,  1-16. 
names  used  as  synonymous  with,  13-16. 
as  a  part  of  all  civilized  systems  of  law,  11,  12. 
questions  involved,  1,  2. 
development  of,  7,  8. 
advantages  of.  9.  10. 
objections  to  this  term,  14,  15. 
origin  of,  8. 

PRIZE: 

property  seized  as,  1 17-132. 

as  governed  by  law  of  nations,  1 17-132. 


viii  INDEX. 

PROCEDURE : 

in  uncivilized  countries,  56-57. 

what  the  term  includes,  503. 

what  law  governs,  504-509. 

remedies  and  process  as  belonging  to,  506,  507. 

evidence  as  a  part  of,  507. 

Statutes  of  limitations,  as  within,  507,  508. 

set-off  as  governed  by,  508. 

how  far  lex  fori  not  applicable,  508,  509. 

REAL  PROPERTY: 

governed  by  what  law,  220. 

trespass  to,  where  action  brought,  149,  150. 

RESIDENCE:     (See  Domicil). 

what  is  a  temporary,  40,  63. 

as  determining  domicil,  63,  64. 

as  an  element  of  domicil,  36-43,  44. 

as  an  essential  of  citizenship,  108-110. 

lawful,  implies  what,  113. 

necessity  of,  in  order  to  obtain  divorce,  108-208. 

REVERTER  OF  DOMICIL :    32,35,36,57-64-     (See  Domicil). 
SAILORS : 

domicil  of,  81-84. 

SERVANTS : 

domicil  of,  80-81. 

SHIPS: 

domicil  of,  91-93. 

SINE  ANIMO  REVERTENDI : 

as  determining  national  character,  125. 

SITUS: 

of  personal  property,  90,  97,  98. 
of  a  debt,  440-447. 

SOVEREIGNTY : 

meaning  of,  16,  17. 
scope  of,  17. 
division  of,  17. 
as  applied  to  states,  16. 

STATE: 

defined,  16. 

kinds  of,  16,  17. 

application  of  the  term,  16,  17. 

"nation"  compared  with,  16. 

power  of,  to  tax  property  within,  97. 

jurisdiction  of,  over  marriage  and  divorce  191-208. 

STATUS : 

effect  of  marriage  on,  28-43. 

political,  38-43. 

civil,  38-43- 

as  regulated  by  domicil,  99.  217,  278. 

civil,  derived  by  marriage,  167,-176. 

marriage  considered  as  a,  201,  202,  203. 

to  what  extent,  recognized  abroad.  217. 

STATUTES: 

penal,  140-165. 

STATUTE  OF  FRAUDS  :    493-498. 


INDEX.  IX 

STUDENTS: 

domicil  of,  85-87. 

SUCCESSION : 

to  personal  property,  governed  by  what  law,  293. 

SUCCESSION  DUTY: 

where  payable,  46-53. 
what  law  governs,  46-53. 

TAXES : 

where  payable,  46,  47-53. 
domicil  for  purpose  of,  87  et  seq. 
situs  of  property,  for  purposes  of,  97. 

TORTS: 

committed  in  an  uncivilized  country,  56. 

actions  for,  when  committed  abroad,  133,  134,  135,  137-140. 

where  suit  may  be  brought,  in  case  of,  498-503. 

TRESPASS: 

to  real  property,  where  action  brought,  149,  150. 

UNCIVILIZED  COUNTRIES : 
domicil  in,  54. 
marriage  in,  55. 
contract  in,  55. 
alienation  of  movables  in,  56. 
torts  in,  56. 
as  to  procedure,  56-57. 

VOTING: 

as  evidence  of  domicil.  22,  86. 

WAR: 

conduct  of  nations,  in  time  of,  17,  18. 
goods  captured  in,  1 17-132. 

WILLS : 

made  in  uncivilized  countries,  55. 


LAW  LTBRAOT 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


A     000  683  489     9 


